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2014] CRIME VICTIMS’ RIGHTS 61
INTRODUCTION
In recent years, federal and state enactments have given crime victims
extensive rights to participate in criminal cases. Many of these rights apply
only after the filing of criminal charges, such as the victim’s right to be
heard during court proceedings. A crime victim’s right to deliver an impact
statement at sentencing, for instance, can only be exercised after a
prosecutor has filed charges against a defendant and obtained a conviction.
Other rights, however, can apply even before the formal filing of charges.
As one example, the Crime Victims’ Rights Act (CVRA)! extends to
federal crime victims the nght to “confer” with prosecutors. But can
victims exercise this right before charges have been filed?
This question has tremendous practical importance. In many cases,
prosecutors negotiate pleas well before any charges are ever drafted. If
crime victims’ rights enactments do not extend rights to victims until the
formal filing of charges, then crime victims can be effectively excluded
from the plea bargaining process. Yet the exclusion of victims in early
stages of a criminal case affects more than just the content of a plea deal.
Crime victims will also lose other important rights in the process if the
formal filing of charges is the necessary trigger for those nghts. If, for
example, prosecutors work out a nonprosecution agreement with an
offender, they need not notify his victims of what they are doing or of the
fact that potential charges will never be filed.
The issue of pre-charging rights has most prominently surfaced in
connection with federal cases. In 2010, the Department of Justice’s Office
of Legal Counsel (OLC) weighed in on the issue and released a legal
opinion arguing that victims of federal crimes have no CVRA rights during
a federal criminal investigation.” The Justice Department took the position
that rights under the CVRA do not apply until prosecutors formally initiate
criminal proceedings by filing a complaint, information, or indictment. The
Department claims to find support for that limiting interpretation of the
statute in its plain language and legislative history.
Shortly after the Department released its opinion, one of the CVRA’s
congressional sponsors, then-Senator Jon Kyl, sent a letter to Attorney
General Enc Holder strenuously objecting to the Department’s conclusions.
Senator Kyl directly stated his view that “[w]hen Congress enacted the
' Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn
Crime Victims’ Rights Act, Pub. L. No. 108-405, 118 Stat. 2260, 2261-65 (2004) (codified
as amended at 18 U.S.C. § 3771 (2012) and 42 U.S.C. § 10603(d)-(e) (2006)).
? The Availability of Crime Victims’ Rights Under the Crime Victims’ Rights Act of
2004, 35 Op. O.L.C. 1 (Dec. 17, 2010) [hereinafter OLC CVRA Rights Memo], available at
http://goo.gl/fHmCL4.
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