Analysis of Advisory Committee Amendments to Federal Criminal Procedure Rules

Page 76 of 78 2007 Utah L. Rev. 861, *968 of subpoenas for confidential information and thus violated important due process principles. °°? The new rule is an improvement, in that it limits ex parte procedures to "exceptional circumstances." The Committee note then offers two illustrations of exceptional circumstances. One is unobjectionable - where "evidence ... might be lost or destroyed if the 590 " subpoena were delayed" - a standard exigent circumstance that justifies moving rapidly. But the other illustration - n 591 a situation where the defense would be unfairly prejudiced by premature disclosure of a sensitive defense strategy - remains quite problematic, for reasons discussed earlier. °?7 Rule 21. Also at its October 1, 2007 meeting, the Advisory Committee approved a very modest change to Rule 21(b), regarding transfer of cases for convenience. The change reads: Rule 21. Transfer for Trial (b) For Convenience. Upon the defendant's motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, and victim, and the witnesses, and in the interests of justice. This change is modest, because (in my estimation) relatively few federal cases involving victims are transferred for "convenience" under Rule 21(b). The more common situation is transfers for prejudice under Rule 21(a). >°3 Thus, this change is, at best, relatively inconsequential. In any event, the change is defective. While the proposed rule lets the judge consider the victim's interest in determining whether to transfer, the Advisory Committee did not adopt my recommendation to let crime victims be heard on transfer decisions. °?4 Without a mechanism for passing victim information along to the judge, an instruction to the judge to consider the victims' interest is essentially meaningless. The Advisory Committee should remedy this defect by giving victims the right to be heard on transfer decisions. Rule 32. In possible response to my point that victims deserve the right to be "heard" at sentencing hearings by speaking directly to the judge, *°° on April 16, 2007, the Advisory Committee modified its note to Rule 32(i)(4). The note now reads: "Absent unusual circumstances, any victim who is present should be [*969] allowed a reasonable opportunity to speak directly to the judge." *°° While this is an improvement over earlier language, it still remains unclear what sorts of "unusual circumstances" the Advisory Committee has in mind that would permit a judge to deny a victim her right under the CVRA to speak. It is also odd that the Advisory Committee Note would apparently allow a judge to exclude a victim in some circumstances, when the only two reported decisions on the issue have held directly to the contrary that victims have an unequivocal right to speak to the judge. *°7 Rule 60. In response to public comments, the Advisory Committee made several modest changes to Rule 60. Rule 60(a)(2) was revised to make clear that the duty to permit full attendance arises in the context of the victim's possible exclusion. *?° As 589 See supra notes 347-351 and accompanying text. 59° Bucklew Memo, supra note 580, app. a, at 282. 591 Tq. 592 See supra notes 249-257 and accompanying text. 593 See, e.g., supra notes 366-382 and accompanying text (discussing transfer for prejudice in two cases). 594 See supra note 366 and accompanying text. 95 See supra notes 434-448 and accompanying text. 96 Beale Memo, supra note 580, app. at 7. 597 See Kenna v. U.S. Court for Cent. Dist. of Cal., 435 F.3d 1011, 1016 (9th Cir. 2006); United States v. Degenhardt, 405 F. Supp. 1341, 1343-44 (D. Utah 2005); see also United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (reaching same conclusion). *98 Bucklew Memo, supra note 580, app. a, at 299, 302-03. DAVID SCHOEN HOUSE_OVERSIGHT_017711