Advisory Committee tweaks to Federal Criminal Procedure Rules on victim rights

Page 75 of 78 2007 Utah L. Rev. 861, *966 In response to this Article and to other public criticisms of its rules, the Advisory Committee made several modest changes to its proposed rules. These changes are discussed in numerical order here. Other than these changes, no significant changes were made to the proposed rules discussed here. The Advisory Committee has submitted them all to the Supreme Court and, unless the Court takes the unusual step of disavowing them, they will go into effect on December 1, 2008. Rule 1. In apparent response to my criticism that the definition of "victim" found in Rule 1 intentionally excluded a victim's "representative," 78 on April 16, 2007, the Advisory Committee amended its proposed Rule 60 to allow a victim's representative to assert a right. Rule 60(b)(2) now provides: "A victim's rights described in these rules may be asserted by the victim, the victim's lawful representative, the attorney for the government, or any other person as authorized [*967] by /& U.S.C. § 3771(d) and (e)." >7? This change insures that victims' representatives will be able to assert victims’ rights. The Advisory Committee also added language to the Committee Note stating that courts could make appropriate findings to resolve any dispute about who is a victim. *°° Rule 5. At its October 1, 2007 meeting in Utah, the Advisory Committee approved a proposed change to Rule 5 regarding detention hearings. The proposed addition to Rule 5 reads: "In making the decision to detain or release the defendant, the judge " must consider the right of the victim to be reasonably protected from the defendant." >8! This language was lifted almost straight from Senator Kyl's proposed legislation implementing the CVRA **? (which is discussed in the next section). This seems like a valuable addition to the Rules, helping to protect victims' rights in detention decisions. Rule 12.1. At its April 16, 2007 meeting, the Advisory Committee apparently agreed with my conclusion that courts lack authority to force a victim to meet with a defendant >*? 584 and struck language recommending such a meeting from its Committee note. Rule 12.3. Also at its October 1, 2007 meeting, the Advisory Committee responded to my point that the same language appears in both Rule 12.1 (alibi defense) and Rule 12.3 (public authority defense) regarding disclosure of addresses of crime victims. >85 It therefore proposed to add the same changes to Rule 12.3 that it added to Rule 12.1. *8° Unfortunately, for the reasons discussed at length here, now the language in both Rule 12.1 and 12.3 is insufficiently protective of victims' rights. *87 Rule 17. At its April 16, 2007 meeting, the Advisory Committee revised its rule on subpoenas for confidential information to read: "Before entering the order and unless there are exceptional circumstances, the court must require that notice be given to the victim so that the victim can move to quash or modify the subpoena or otherwise object." *°8 This change responds to objections from the American Bar Association, other groups, and me that the earlier rule encouraged ex parte [*968] issuance 578 See supra notes 117-126 and accompanying text. 579 Proposed Amendments, supra note 71, R. 60(b)(2), at 17 (emphasis added). 80 Memorandum from Hon. Susan C. Bucklew, Chair, Advisory Comm. on Fed. Rules of Criminal Procedure, to Hon. David F. Levi, Chair, Standing Comm. on Rules of Practice and Procedure app. a, at 271-72 (May 19, 2007) [hereinafter Bucklew Memo], available at http://www.uscourts.gov/rules/Reports/CRO5-2007. pdf. *81_ Memorandum from Professor Sara Sun Beale, Reporter, Advisory Comm. on Fed. Rules of Criminal Procedure, to Members of the Criminal Rules Advisory Comm. 136 (Sept. 2, 2007) [hereinafter Beale Memo]. 582 §. 1749, 110th Cong. § 5 (2007). 583 See supra notes 206-211 and accompanying text. 584 Bucklew Memo, supra note 580, app. a, at 277. 85 See supra notes 202-203 and accompanying text. 86 Beale Memo, supra note 581, app. at 7. 87 See supra notes 187-191 and accompanying text (explaining why changes to Rule 12.1 leave victims' addresses vulnerable to unfair disclosure). 88 Bucklew Memo, supra note 580, app. a, at 283. DAVID SCHOEN HOUSE_OVERSIGHT_017710