Critique of Advisory Committee Proposals on Crime Victims' Rights Act (CVRA) Amendments

Page 72 of 78 2007 Utah L. Rev. 861, *962 It is important to emphasize one argument the Advisory Committee does not appear to make: that the CVRA applies only to charged crimes. Any such argument would not only fly squarely in the face of the CVRA's venue and coverage provisions applying victims' rights against investigating agencies, but also of the CVRA's clear legislative history. Discussing the CVRA's definition of a crime victim, *°? Senator Kyl said the statute used an "intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged." *°° At least one federal magistrate judge has suggested, in dicta, that - in spite of Senator Kyl's plain statement - the CVRA might not apply until charges have been filed. *°! His primary reason for doing so, however, was that the Supreme Court's decision in Hughey v. United States, ©? suggested this result. To be sure, the victims statute at issue in Hughey (the Victim Witness Protection Act) did employ a similar definition of "victim" as that found in the CVRA. But Hughey turned on the fact that other language in the restitution statute provided that ""a defendant convicted of an offense’ may be ordered to "make restitution to any victim of such offense. > Such a straightforward holding says little about a statute - such as the "fairness" provision in the CVRA - that contains no such limiting language regarding persons "convicted ... of [an] offense." Moreover, the magistrate judge did not discuss the CVRA's coverage and venue provisions, which plainly dictate that the CVRA applies to crimes not yet charged. For all these reasons, the [*963] Advisory Committee should apply the CVRA as written and include a venue provision both for prosecuted and not-yet-prosecuted crimes. Fifth, and most important, in proposed Rule 60(b)(2), the Advisory Committee gives victims the power to assert rights "under these rules." As has been noted throughout this Article, the Rules as they would be amended by the Advisory Committee leave out many of the victims' rights under the CVRA. For example, the victims right to a speedy trial has not been included in the proposed rule changes. >°* By giving victims the power to only assert the limited number of rights listed "under these rules," the Advisory Committee ignores many victims’ rights under the CVRA. At the very least, the language should be changed to make clear that victims to assert all rights that they have under the CVRA. One change that the Advisory Committee should not make is worth brief mention: The Advisory Committee should not add a provision for a fact-finding hearing to determine whether someone is a "victim" of crime. In its comment on the pending proposed amendments, the National Association of Criminal Defense Lawyers ("NACDL") has proposed such a procedure. The rationale it gives is that "the conferring of "rights' on the "victim’ comes, in general, at the expense of the defendant. Thus, due process requires that a provision be added to these Rules for a factfinding hearing, to be held whenever the proper labeling of a person as "victim,’ is in dispute ... ." °° The NACDL's rationale is patently defective. The rights in the CVRA do not interfere with any rights of the defendant, as pointed out throughout this Article. *©° For instance, for victims to be notified of court hearings, to attend those hearings, and 559 See supra notes 117-133 and accompanying text (discussing amendments to Rule 1). 560 150 Cong. Rec. $10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl); ef. United States v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006) ("Although some of the other rights in the Crime Victims' Rights Act (such as the right to be heard and the right to not be excluded) are limited to "public proceedings,' the right to fairness is not so restricted."). 61 United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005). 562 495 U.S. 411 (1990). 563 Id. at 415-16 (emphases added) (quoting 18 U.S.C. § 3579(a)(1) (1982 ed. Supp. IV)). 564 See supra notes 483-493 and accompanying text. *65 Peter Goldberger, Statement on Behalf of the Nat'l Assoc. of Crim. Defense Lawyers Before the Advisory Comm. on Criminal Rules 4 (Jan. 26, 2007). 566 While the CVRA extends to uncharged crimes, it is also obvious that "the CVRA does not grant victims any rights against individuals who have not been convicted of a crime." Jn re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005) (emphasis added); accord Searcy v. Skinner, No. 6:06-1418-GRA-WMC, 2006 WL 1677177, at 2 (D.S.C. June 16, 2006). Like the constitutional amendment it was patterned on, the CVRA extends rights against the government - that is, rights "not to be victimized again through the process by which government DAVID SCHOEN HOUSE_OVERSIGHT_017707