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104 J. Crim. L. & Criminology 59, *89

CVRA protections - i.e., victims of misdemeanor offenses prosecuted by way of complaint - will never have proper venue to assert those rights because, according to OLC's strained argument, no prosecution ever started in their cases.

Even limiting the focus to felony cases, OLC misleadingly describes the Sixth Amendment case law. It is not immediately clear why one would look to the right to counsel to determine the breadth of the term "prosecution" in the Sixth Amendment. The right to counsel is not the only right found in that Amendment. The Amendment also extends, for example, a right to a speedy trial in all criminal "prosecutions." 172 The case law on the speedy trial right makes clear that the right "may attach before an indictment and as early as the time of arrest and holding to answer a criminal charge." 173

In any event, the right to counsel cases are quite clear in providing that a Sixth Amendment "prosecution" can (and often does) begin well before an indictment. 174 The Supreme Court has directly held that the Sixth Amendment's right to counsel attaches "at or after the time that judicial proceedings have been initiated against [a person] - "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" 175 Thus, under this controlling precedent, some earlier point in time before indictment is the triggering point of a Sixth Amendment "prosecution."

The cases that OLC cites are not to the contrary. It is true that some federal appeals courts have stated that the mere filing of a criminal complaint does not trigger a Sixth Amendment right to counsel. 176 But there is a split of authority on this question, as OLC acknowledges in a footnote. 177 More importantly for purposes of this Article, the cases holding [*90] that the mere filing of a complaint does not start a Sixth Amendment prosecution also make clear that a later court hearing would start such a prosecution. For instance, in the Fourth Circuit case cited by OLC, United States v. Alvarado, the court reasons that "the main reason a law enforcement officer files [] a complaint is to establish probable cause for an arrest warrant. The criminal process is still in the investigative stage, and the adverse positions of government and defendant have yet to solidify." 178 Relying on that reasoning, the Fourth Circuit refused to find that the right to counsel had attached merely because a police officer had filed a complaint to get an arrest warrant. But the Fourth Circuit distinguished that situation from "the initiation of adversary judicial proceedings against the defendant." 179 An initial appearance would be such an adversary proceeding - i.e., it would be a "prosecution" under the Sixth Amendment. In light of this, OLC's position that the CVRA's venue provision's "no-prosecution-underway" reference covers proceedings, such as an initial appearance, does not work.

The only sensible way to construe the CVRA's venue provision is to read it as conveniently dividing criminal cases into two phases: a prosecution phase and an earlier investigative phase when "no prosecution is under way." 180 Senator Kyl, for

172 U.S. Const. amend. VI.

173 United States v. Gouveia, 467 U.S. 180, 190 (1984) (quoting United States v. MacDonald, 456 U.S. 1, 6-7 (1982)) (internal quotation marks omitted).

174 See, e.g., Texas v. Cobb, 532 U.S. 162, 172-73 (2001).

175 Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

176 See, e.g., United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006).

177 OLC CVRA Rights Memo, supra note 2, at 14 n.15 (citing Hanrahan v. United States, 348 F.2d 363, 366 n.6 (D.C. Cir. 1965)); see Wayne R. LaFave et al., Criminal Procedure § 6.4(e), at 670 (3d ed. 2007) ("There is an apparent split of authority on the question of whether the filing of a complaint is alone enough to give rise to a Sixth Amendment right to counsel, though the difference probably is explainable by the fact that this document is used for multiple purposes."); see also Felder v. McCotter, 765 F.2d 1245, 1248 (5th Cir. 1985) (citing Texas law).

178 Alvarado, 440 F.3d at 200 (citations omitted) (internal quotation marks omitted).

179 Id. (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)).

180 18 U.S.C. § 3771(d)(3) (2012).

DAVID SCHOEN

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