Proposed Amendments to Federal Rules to Expand Victims' Rights Under the CVRA

Page 14 of 52 2005 B.Y.U.L. Rev. 835, *857 [*858] Rule 1 also appears to be the best place to include the CVRA's language about a "representative" of a victim. This language, too, draws from the restitution statutes. !?7 Rule 2 - Fairness to Victims in Construction The Proposal: Rule 2 should be amended to require fairness to victims in construing the rules as follows: These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration to the government, defendants, and victims, and to eliminate unjustifiable expense and delay. The Rationale: The CVRA broadly mandates that victims have the right to "be treated with fairness and with respect for the victim's dignity and privacy." !?8 This creates a substantive right to fairness, similar to that found in various state victims' rights amendments - including the [*859] amendment found in Senator Kyl's home state of Arizona. !°? This broad reading was explained by Senator Kyl, who, along with Senators Feinstein and Hatch, was the primary legislative sponsor of the CVRA: "The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process." 13° In light of victims’ new substantive right to fairness, Rule 2 should be amended to make clear that all of the rules must be construed to be fair to victims no less than to the government and defendants. (New) Rule 10.1 - Notice of Proceedings for Victims The Proposal: A new Rule 10.1 should be added to guarantee victims their right to notice of proceedings as follows: Rule 10.1 Notice to Victims. crime deserve to have their rights protected, whether or not they are the victim of the count charged." See 150 Cong. Rec. $10,910-01 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). At least one court has suggested that, as a matter of discretion, it is desirable to notify even victims of uncharged conduct under the CVRA. See United States v. Turner, 367 F. Supp. 2d 319, 327 (E.D.N.Y. 2005) (concluding that, absent reason to think otherwise, any person who the government asserts has been harmed by a crime or who self-identifies as such qualifies as a "victim"); cf. In re WR. Huff Asset Mgmt. Co., 409 F.3d 555, 561 (2d Cir. 2005) (holding that the CVRA does not grant victims any rights against individuals not convicted of a crime, but the government can attempt to obtain voluntary restitution from such persons). 27 See, e.g., 18 U.S.C. 3663A(a) (same definition of victim "representative"). 128 18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005). 29 See, e.g., Ariz. Const. art. II, 2(A)(1) (victim's right "to be treated with fairness, respect, and dignity"); see also Alaska Const. art. I, 24 (victim's right "to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process"); Idaho Const. art. I, 22 (victim's right "to be treated with fairness, respect, dignity and privacy throughout the criminal justice process"); Ill. Const. art. I, 8.1 (victims "to be treated with fairness and respect for their dignity"); Mich. Const. art. I, 24 (victims "to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process"); N.J. Const. art. I, P 22 (victim's right to "be treated with fairness, compassion and respect by the criminal justice system"); N.M. Const. art. II, 24 (the "right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process"); Ohio Const. art. I, 10a (victims "shall be accorded fairness, dignity, and respect in the criminal justice process"); Tex. Const. art. I, 30(a)(1) ("right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process"); Utah Const. art. I, 28(1)(a) (victim's right to be "treated with fairness, respect, and dignity"); Wis. Const. art. I, 9m (victim's right to be treated with "fairness, dignity and respect for their privacy"). See generally Cassell, supra note 15, at 1387-88 (discussing victims' right to fairness in Utah). 130 150 Cong. Rec. 4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). DAVID SCHOEN HOUSE_OVERSIGHT_017728