Text extracted via OCR from the original document. May contain errors from the scanning process.
90 CASSELL ET AL. [Vol. 104
that the mere filing of a complaint does not start a Sixth Amendment
prosecution also make clear that a later court hearing would start such a
prosecution. For instance, in the Fourth Circuit case cited by OLC, United
States v. Alvarado, the court reasons that “the main reason a law
enforcement officer files [] a complaint is to establish probable cause for an
arrest warrant. The criminal process is still in the investigative stage, and
the adverse positions of government and defendant have yet to solidify.”!”
Relying on that reasoning, the Fourth Circuit refused to find that the nght to
counsel had attached merely because a police officer had filed a complaint
to get an arrest warrant. But the Fourth Circuit distinguished that situation
from “the initiation of adversary judicial proceedings against the
defendant.”’”? An initial appearance would be such an adversary
proceeding—1.e., it would be a “prosecution” under the Sixth Amendment.
In light of this, OLC’s position that the CVRA’s venue provision’s “no-
prosecution-underway” reference covers proceedings, such as an initial
appearance, does not work.
The only sensible way to construe the CVRA’s venue provision is to
read it as conveniently dividing criminal cases into two phases: a
prosecution phase and an earlier investigative phase when “no prosecution
is under way.”'*° Senator Kyl, for instance, has noted that if there are any
doubts about how to construe the CVRA, this venue provision “sweeps
them away.”!8' Once again, the language that Congress used leads
inexorably to the conclusion that the CVRA extends rights to victims before
the filing of criminal charges.
The zeal with which OLC argues against applying CVRA rights before
charging raises the question of why it protests so much. Although OLC
never articulated this concern, perhaps OLC worried that pre-charging
rights would be difficult to administer. Such concerns should evaporate
with a workable construction of when pre-charging rights attach. In this
Part, we propose such a construction, suggesting that CVRA rights should
attach when substantial evidence exists that a specific person has been
directly and proximately harmed as the result of a federal crime. This
approach appears to already be the method that the Department is taking, as
this document is used for multiple purposes.”); see also Felder v. McCotter, 765 F.2d 1245,
1248 (Sth Cir. 1985) (citing Texas law).
178 Alvarado, 440 F.3d at 200 (citations omitted) (internal quotation marks omitted).
179 Td. (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)).
180 18 U.S.C. § 3771(d)(3) (2012).
181 Kyl et al., supra note 19, at 594.
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