Proposed Rule Changes on Victim Notice and Attendance in Federal Courts

Page 66 of 78 2007 Utah L. Rev. 861, *953 516 as do some states. >!7 To ensure that the prosecutors and their agents to provide notice to crime victims for their rights, Justice Department has sufficient resources to provide notice, the CVRA authorizes $ 25 million over the next five fiscal years to the Office for Victims of Crime of the Department of Justice for enhancement of victim notification systems. *!® The Advisory Committee should therefore add language to its proposed rule change to require prosecutors to give victims notice of their rights. [*954] (New) Rule 60(a)(1) - Proceeding Without Notice to a Victim The Proposals: I proposed spelling out what would happen in circumstances where a court wanted to proceed with a hearing but no notice had been given to a victim as follows: (b) Proceeding With and Without Notice. The court may proceed with a public proceeding without a victim if proper notice has been provided to that victim under Rule 10.1. The court may proceed with a public proceeding (other than a trial or sentencing) without proper notice to a victim only if doing so is in the interest of justice, the court provides prompt notice to that victim of the court's action and of the victim's right to seek reconsideration of the action if a victim's right is affected, and the court ensures that notice will be properly provided to that victim for all subsequent public proceedings. *!° The Advisory Committee did not propose any such change. **° Discussion: It seemed desirable to me to spell out how courts should proceed when victims lacked notice of a hearing. In contrast, the Advisory Committee has chosen not to address the subject. By not addressing the subject, the Advisory Committee may be suggesting that the court is forbidden from moving forward when a victim has not been given notice of a proceeding. The caselaw makes clear that when a defendant has not been given notice, any subsequent court action is void. >?! The CVRA's legislative history shows that the same rule was to apply for victims. As Senator Kyl explained, It does not make sense to enact victims’ rights that are rendered useless because the victim never knew of the proceeding at which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is equivalent to a violation of the right itself. >? [*955] In light of the fact that a court might otherwise be barred from proceeding when a victim has not been given notice, it still seems preferable to me to spell out a way to allow the court to move forward while simultaneously protecting victims' interests. But I will not elaborate the point further here. (New) Rule 60(a)(2) - Victims' Right to Attend Trials Both the Advisory Committee and I proposed a rule that guarantees victims the right to attend court proceedings except in those very rare instances where the victim's testimony would be 516 See Attorney General Guidelines, supra note 161, at 23. 517 See, e.g., Ala. Code. § 15-23-62 (LexisNexis 1995) (requiring law enforcement officers to give victims initial description of their rights and "the name and telephone number of the office of the prosecuting attorney to contact for further information"). 318 See Pub. L. No. 108-405, 118 Stat. 2260, 2264-65 (2004); see also 150 Cong. Rec. $4267 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) ("We authorized an appropriation of to assure ... that moneys would be made available to enhance the victim notification system, managed by the Department of Justice's Office for Victims of Crime, and the resources additionally to develop state-of-the-art systems for notifying crime victims of important states of development.") (emphasis added). 519 Cassell, Proposed Amendments, supra note 4, at 904-05. I proposed adding this as new Rule 43.1, but discuss it here as new Rule 60(a)(1) to track the Advisory Committee's nomenclature. 520 Proposed Amendments, supra note 71. 1 See Wright, supra note 210, § 721, at 13. 22 150 Cong. Rec. $10910-01 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (reprinted in Appendix B). DAVID SCHOEN HOUSE_OVERSIGHT_017701