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Page 47 of 52
2005 B.Y.U.L. Rev. 835, *915

certain cases. Title 18 U.S.C. 3509 provides, "The court may appoint a guardian ad litem for a child who was a victim of, or a witness to, a crime involving abuse or exploitation to protect the best interests of the child." Congress, however, has not yet provided funding for this particular right. 322 Finally, in unusual circumstances where a crime victim may also face possible criminal charges of his or her own, the Criminal Justice Act would authorize appointment of and payment for defense counsel. 323

Proposed Rule 44.1 would confirm the existing discretionary power of the courts to appoint volunteer counsel. The rule is purely discretionary (the court "may" appoint counsel) and is limited to [*916] situations where the interests of justice require appointment. The rule does not address payment for counsel, as this matter must be left to subsequent appropriations from Congress. The court, however, can ask for volunteer counsel to assist victims on a pro bono basis.

There is reason to expect that some attorneys will volunteer. Not only are many attorneys willing to undertake pro bono representation, but the CVRA itself authorizes millions of dollars in funding for victim representation around the country. The authorization includes support for the National Crime Victims Law Institute at the Northwestern School of Law at Lewis and Clark College to help establish eleven legal offices around the country representing crime victims. 324

Finally, it might be argued that it is unnecessary to address this subject in a rule because the court's inherent authority to appoint counsel exists even without a rule. Both courts and victims, however, will find it useful to have this authority spelled out in the criminal rules to eliminate any lingering doubt. In addition, the CVRA obliges prosecutors to eliminate any lingering doubt in the event of any material conflict of interest between the prosecutor and the victim by "advising the crime victim that the crime victim can seek the advice of an attorney." 325 This requirement may frequently require prosecutors to help victims obtain legal counsel. Accordingly, a separate rule on this subject is appropriate.

For all these reasons, the rules should be amended to recognize the court's authority to appoint volunteer counsel to represent a crime victim.

[*917]

Rule 46 - Victims' Right To Be Heard Regarding Defendant's Release from Custody

The Proposal:

Victims should be explicitly given the right to be heard regarding the defendant's release from custody as follows:

(k) Victims' Right To Be Heard. A victim has the right to be heard regarding any decision to release the defendant. The court shall consider the views of victims in making any release decision, including such decisions in petty cases. In a case where the court finds that the number of victims makes it impracticable to accord all of the victims the right to be heard in open court, the court shall fashion a reasonable reasonable procedure to facilitate hearing from representative victims.

The Rationale:

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320 See, e.g., D. Utah Civ. R. 83-1.1(b)(3) (1997) ("Any attorney who is admitted to the bar of this court must agree, as a condition of such admission, to engage in a reasonable level of pro bono work when requested to do so by the court.").

321 28 U.S.C. 1915(e)(1) (2000) (emphasis added).

322 Memorandum from the Administrative Office of the United States Courts to the United States District Court Judges and the United States Magistrate Judges (March 19, 1991) (available from the Administrative Office).

323 See 18 U.S.C. 3006A(a)(1).

324 See 42 U.S.C. 10603(d) (2000); see also 150 Cong. Rec. S4266 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) (noting appropriations for the National Crime Victims Law Institution "to provide grants and assistance to lawyers to help victims of crime in court" with funding sufficient to "provide for two new regional offices and nine specific clinics"). For more information on NCVLI, see http://www.ncvli.org.

325 18 U.S.C.A. 3771(c)(2) (West 2004 & Supp. 2005).

DAVID SCHOEN

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