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84 CASSELL ET AL. [Vol. 104

the victim has an opportunity to be heard by the court, and by the
Government, before the court accepts the plea.”143

But OLC failed to recognize that its interpretation of the CVRA
rendered the right to be heard a nullity in many important cases—including,
notably, the Epstein case.144 Where prosecutors and defense attorneys work
out a nonprosecution agreement that agreement will never be presented to a
court for review. Thus, in cases where the need for victim participation
may be the greatest—that is, in cases where the Government is considering
never filing any charges—OLC’s interpretation would bar victims from
having any rights at all.

Even in situations where a prosecutor works out a plea agreement,
OLC’s interpretation is problematic. As OLC recognizes, prosecutors and
defense counsel commonly work out pre-indictment plea agreements
(particularly in white-collar cases), under which a defendant will plead
guilty to certain charges.145 Then, the parties jointly present to the district
court a criminal “information” (that is, a recitation of the charges drafted by
the prosecutor but never presented to the grand jury146) and a plea
agreement, asking the court to file the criminal information and
simultaneously accept the guilty plea. As the OLC memorandum
acknowledges, a crime victim would have the right to object to the plea
agreement, because the CVRA gives crime victims the “right to be
reasonably heard” at any public proceedings involving a plea.147 But under
OLC’s interpretation of the CVRA, a crime victim has no right to notice of
court hearings until the charges are filed. Thus, if the information and plea
are filed simultaneously, as is often the case, two scenarios are possible. A
victim could have no prior right to notice of the proceeding at which the
plea was being accepted, or alternatively (if the act of filing the information
in the course of accepting a plea triggers a notification right), the district
court would be required to stop in the middle of proceedings and ensure that
notification was belatedly provided. Of course, these difficulties are all
avoided if the right to confer is properly construed as attaching before
charges are filed, such as during plea negotiations between prosecutors and
defense attorneys.

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143 Id.
144 The OLC opinion was publicly released on May 20, 2011. Perhaps not
coincidentally, this release date was shortly before the Government filed its response in the
Epstein case.
145 See OLC CVRA Rights Memo, supra note 2, at 9 (acknowledging the potential effect
of the CVRA on plea negotiations).
146 See FED. R. CRIM. P. 7(b).
147 18 U.S.C. § 3771(a)(4) (2012); OLC CVRA Rights Memo, supra note 2, at 6–7.

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