Proposed Expansion of Victims' Right to Be Heard in Federal Criminal Proceedings

Page 67 of 78 2007 Utah L. Rev. 861, *955 materially altered by attending the trial. >? Because the Advisory Committee proposal essentially tracks my proposal, it is not necessary to discuss this issue here. (New) Rule 60(a)(3) - Victims’ Right to be Heard on Bail, Plea, Sentencing and Other Issues The Proposals: I proposed not only specific rules allowing victim to be heard at release, plea, and sentencing hearings but also a general rule giving victims the right to be heard on all issues directly affecting their rights as follows: Right to be Heard on Victims' Issues. In addition to rights to be heard established elsewhere in these rules, at any public proceeding at which a victim has the right to attend, the victim has the right to be heard on any matter directly affecting a victim's right. °7+ The Advisory Committee proposed only a narrow rule giving victims the right to be heard at only three specific points in the process - bail, plea, and sentencing hearings: Right to Be Heard. The court must permit a victim to be reasonably heard at any public proceeding in the district court concerning release, plea, or sentencing involving the crime. **° [*956] Discussion: The Advisory Committee's proposed general rule on the victim's right to be heard is inferior to weaving that right into the specific rules on release, plea, and sentencing. This issue is discussed earlier in this Article. °2° The larger issue to pursue here is the silence of the Advisory Committee on how a court should proceed when a victim's rights under the CVRA are at stake in other proceedings. For example, what if the court is considering continuing a trial in violation of a victim's right to "proceedings free from unreasonable delay"? °27 Or excluding the victim from a proceeding in violation of a victim's right "not to be excluded from ... public court proceeding"? > Or turning over to the defense personal and confidential information about the victim in violation of a victim's night "to be treated with fairness and with respect for the victim's dignity and privacy"? *°° Or giving a defendant the victim's home address in an alibi situation in violation of the victim's right to be "reasonably protected from the accused"? °7° My proposed rule would state directly that the victim has the right to be heard on such issues. How the Advisory Committee would handle such issues is unclear. The Advisory Committee's proposed rule on the victim's right to be heard only confers such a right for three specific hearings. The listing of three hearings might seem to suggest victims could not be heard elsewhere. But denying victims a chance to be heard at other hearings where their rights are implicated is such an obvious violation of fundamental notions of fairness (not to mention the victim's right to fairness under the CVRA) that one should be reluctant to ascribe that position to the Advisory Committee. *23 See Cassell, Proposed Amendments, supra note 4, at 904-11; Proposed Amendments, supra note 71, R. 60(a)(2), at 16; see also Jn re Mikhel, 453 F.3d 1137, 1139-40 (9th Cir. 2006) (reversing district court decision excluding victims from trial under the CVRA); Beloof & Cassell, supra note 229, at 519-20 (concluding that the CVRA grants a "nearly unqualified" right for the victim to attend a trial). 24 Cassell, Proposed Amendments, supra note 4, at 905, 911. 5 Proposed Amendments, supra note 71, R. 60(a)(3), at 16. *26 See supra notes 464-468 and accompanying text (proposing amendments to Rule 48 regarding release); supra notes 151-158 and accompanying text (proposing amendments to Rule 11 regarding pleas); supra notes 434-448 and accompanying text (proposing amendments to Rule 32). 927 18 U.S.C. § 3771(a)(7) (2006). 928 Td. § 3771(a)(3). 529 Td. § 3771(a)(8); see also supra notes 231-351 and accompanying text (discussing amendments to Rule 17). 330-18 U.S.C. § 3771 (a)(1); see also supra notes 177-213 and accompanying text (discussing this question). DAVID SCHOEN HOUSE_OVERSIGHT_017702