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104 J. Crim. L. & Criminology 59, *77

the VRRA, the Justice Department must inform victims of federal crimes of services that are available to them, including "emergency medical and social services," counseling, and support. 91 The Department is further obligated to keep victims fully informed about "the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation." 92 These rights to notice about "emergency medical and social services" 93 as well as to the "status of the investigation of the crime" 94 obviously require the Department to identify victims of federal crimes before formal charges have been filed. Indeed, the VRRA makes this point clear by directing the Department to not only notify the victim about the status of the investigation but also about the later "filing of charges against a suspected offender." 95 The VRRA then extends victims' rights to information through the rest of the criminal justice process by requiring the Department to provide notice to victims of such things as the imposed sentence and the defendant's release. 96

The VRRA not only requires the Department to identify victims during the investigation of a crime, it also defines those victims in a very similar fashion to the CVRA. The VRRA defines "victim" as a "person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission of a crime." 97 Thus, the Department is already routinely identifying persons who have been "harmed" by federal crimes shortly after the commission of those crimes and well before formal charging.

The Attorney General has also promulgated internal guidelines requiring Justice Department components to identify victims rapidly after a crime. The Attorney General Guidelines for Victim and Witness Assistance provide that "Department responsibilities to crime victims begin as soon as possible after the detection of a crime at which they may be undertaken [*78] without interfering in the investigation. Generally, this point in time is defined by the opening of a criminal investigation." 98

Given the way the two statutes work, it would make no sense to artificially confine the CVRA's reach until after the filing of a criminal complaint. Before then, victims will have often received information from the Department about the status of the investigation. They might wish to confer with prosecutors about how the case is proceeding, and the CVRA extends to them a right to confer. 99 Similarly, while the Department is notifying victims about the services they may receive and the status of an investigation, it is important that the victims be treated fairly. The CVRA extends the right to be treated fairly. 100 Indeed, it would be absurd to think that Congress wanted to permit the Justice Department to treat crime victims unfairly until criminal charges have been filed.

Instead of recognizing Congress's intent, OLC's 2011 memorandum simply cites to a series of cases in which courts concluded that a victim of uncharged conduct should not be afforded statutory protections. 101 Yet none of these cases - United States v. Turner, 102 Searcy v. Paletz, 103 or Searcy v. Skinner 104 - provide strong support for OLC's position. Turner is a particularly

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91 See 42 U.S.C. § 10607(c).
92 Id. § 10607(c)(3)(A).
93 Id. § 10607(c)(1)(A).
94 Id. § 10607(c)(3)(A).
95 Id. § 10607(c)(3)(C).
96 Id. § 10607(c)(3)(G).
97 Id. § 10607(e)(2).

98 Attorney General Guidelines, supra note 52, at 7 (internal citations omitted); see also 42 U.S.C. § 10607(b).

99 18 U.S.C. § 3771(a)(5) (2012) (preserving "the reasonable right to confer with the attorney for the Government in the case").
100 Id. § 3771(a)(8) (preserving "the right to be treated with fairness and with respect for the victim's dignity and privacy").
101 OLC CVRA Rights Memo, supra note 2, at 6 n.6.

102 367 F. Supp. 2d 319 (E.D.N.Y. 2005).

DAVID SCHOEN

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