Academic

Cassell on Victims & the Federal Rules of Criminal Procedure

By Lawrence Solum

Paul G. Cassell (University of Utah - S.J. Quinney College of Law) has posted Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure (Utah Law Review, Forthcoming) on SSRN.  Here is the abstract:

Federal courts should treat crime victims fairly in the criminal process. In a nod to that goal, the Advisory Committee on the Federal Rules of Criminal Procedure has circulated for public comment proposed amendments to the Federal Rules of Criminal Procedure regarding crime victims' rights. These amendments attempt to implement the recently-enacted Crime Victims' Rights Act (CVRA), which guarantees crime victims a series of rights, including the right to be treated fairly. Unfortunately, the proposed amendments are mere tentative, half measures that do not begin to fully protect crime victims.

This Article contends that the Advisory Committee should broaden its vision of the proper role for crime victims and recommend far more expansive victim protections. In the CVRA, Congress articulated specific rights for crime victims, such as the right to be notified of court hearings, to attend those hearings, and to speak at appropriate points in the process. But along with these specific rights came the sweeping requirement that crime victims "be treated with fairness and with respect for the victim's dignity and privacy." This congressional command must not be ignored. In addition, entirely apart from any congressional dictate, crime victims deserve fair treatment in the federal system.

In particular, this Article contains a rule-by-rule analysis of changes that should be made to the federal rules. The following changes are of particular importance:

1. Ensuring that crime victims' attorneys can appear in court (Rule 1);
2. Providing for victim participation in the plea bargain process (Rule 11);
3. Protecting victims' addresses and telephone numbers from improper disclosure (Rule 12);
4. Guaranteeing victims the right to attend criminal depositions (Rule 15);
5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17);
6. Considering victims' interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23);
7. Integrating victims into the sentencing process (Rule 32);
8. Articulating victims' right to discretionary appointment of counsel (Rule 44.1);
9. Giving victims the right to be heard at bail decisions (Rule 46);
10. Requiring victims' views be considered before a case is dismissed (Rule 48);
11. Protecting victims' right to a speedy trial (Rule 50);
12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1));
13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2));
14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).

The article briefly concludes by explaining that the likely consequence of the Advisory Committee failing to fully implement Congress's vision will be that Congress itself will step in to do the job. It would be unfortunate if the Judiciary were to abdicate its responsibilities to protect crime victims and leave the task to another branch of government.

Full post as published by Legal Theory Blog on September 02, 2008 (boomark / email).