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2007 Utah L. Rev. 861, *940

Based on this legislative history, Kenna concluded that crime victims have the right to speak at CVRA-covered proceedings.
445 Kenna explained that this interpretation advanced the purposes of the CVRA, for the "statute was enacted to [*941] make
crime victims full participants in the criminal justice system." 446 The Advisory Committee should follow that lead and
provide that victims are guaranteed a right to speak at sentencing. 447 Of course, in cases involving numerous victims (for
example, a massive fraud case), the CVRA itself allows courts to fashion a "reasonable procedure" to accommodate the
competing concerns. 448

Rule 44.1 - Discretionary Appointment of Counsel for Victim The Proposals:

I proposed that the court's discretionary authority to appoint counsel for a victim should be included in a new rule as follows:

Rule 44.1 Counsel for Victims.

When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising his or her
rights. 449

The Advisory Committee did not propose any change in the Rules on this subject. 450

Discussion:

The Advisory Committee never discussed this particular proposed change, so it is possible that its failure to adopt it was an
oversight. 451 In any event, here it is perhaps useful to emphasize just a few points in favor of this proposal.

While the CVRA does not create a right to counsel for victims, nothing in the Act deprived the courts of their preexisting
inherent authority. The courts generally have the right to appoint volunteer counsel in civil cases, 452 a power that would seem
to extend to criminal cases. Indeed, the Supreme Court has left open the question of whether federal courts possess the inherent
authority to require counsel [*942] to provide legal services to the poor. 453 The local rules of some federal courts already
explicitly recognize this power. 454 In addition, Title 28 broadly permits the court in both civil and criminal cases to "request
an attorney to represent any person unable to afford counsel." 455 And before Gideon v. Wainwright, 456 courts could request

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445 Id.

446 Id.

447 In possible response to such concerns as I raise here, the Advisory Committee modified the Advisory Committee Note to this rule. See
infra notes 587-589 and accompanying text.

448 18 U.S.C. § 3771(d)(2) (2006).

449 Cassell, Proposed Amendments, supra note 4, at 912-16.

450 See Proposed Amendments, supra note 71.

451 See CVRA Subcommittee Memo, supra note 66, at 17-20 (listing my proposals that the subcommittee decided not to recommend; my
proposed Rule 44.1 change not among them).

452 See generally Judy E. Zelin, Court Appointment of Attorney to Represent, Without Compensation, Indigent in Civil Action, 52 A.L.R. 4th
1063 (1987 & Supp. 2004) (collecting and analyzing cases considering the issue of whether the courts can appoint counsel in civil actions to
represent indigents).

453 Mallard v. U.S. Dist. Court, 490 U.S. 296, 307, 308 n.8 (1989).

454 See, e.g., D. Utah Civ. R. 83-1.1(b)(3) ("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.").

455 28 U.S.C. § 1915(e)(1) (2006) (emphasis added).

456 372 U.S. 335 (1963).

DAVID SCHOEN

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