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2007 Utah L. Rev. 861, *922

CVRA contemplates that the attorney for the government will consider the victim's interests in exercising prosecutorial discretion, including the discretionary determination whether to consent to a Rule 20 transfer. The Subcommittee was not persuaded that the rule should disturb this statutory balance by requiring the attorney for the government to advise the court of a victim's objection to a Rule 20 transfer. In appropriate cases, the attorney for the government should appraise the court of the victim's view. 360

The Advisory Committee is able to claim that the CVRA does "not specifically address transfer" only because it reviewed an amputated CVRA - that is, a CVRA without a right to fairness. Under an unblinkered fair reading of the CVRA, the right to fairness applies "specifically" to Rule 20 transfer decisions, no less than the Rule 18 decision to set the place of prosecution just discussed and, indeed, all other decisions in the criminal justice process. Thus, the Advisory Committee has unfairly stacked the deck in deciding that it would not "disturb this statutory balance," when it chose not to weigh the victim's right to fairness as part of that balance.

Even under its truncated view of the statute, the Advisory Committee does envision that the prosecutors will confer with victims about Rule 20 transfer decisions. But the Committee did not want to require prosecutors to notify courts of a victim's objection, venturing only that "in appropriate cases, the attorney for the government should appraise the court of the victim's views." 361 The Committee is coy on the question of when it would not be appropriate for the prosecutor to fail to notify a court of the victim's views. Whenever an unrepresented crime victim objects to transferring a case, prosecutors, as officers of the court, have a duty to pass that objection along to the court as relevant [*923] information bearing on the transfer decision. 362 The rule should state that fact directly.

Finally, nothing in my proposal would impair prosecutorial discretion. My proposal deals solely with ensuring that victim information is passed along to the judge who must approve a transfer decision. The government remains entirely free to make whatever decision it wants on the issue and argue whatever position it believes is appropriate. Moreover, the CVRA itself envisions that the government may have obligations to assert victims' rights. For starters, the CVRA requires prosecutors to "make their best efforts" to see that victims are "accorded" their rights. 363 In addition, the CVRA gives prosecutors the ability to "assert" victims' rights. 364 This provision was designed to ensure that victims' rights are not inadvertently lost because a victim lacks legal counsel. As Senator Kyl explained, "This provision also recognizes that, at times, the government's attorney may be best situated to assert a crime victim's rights ... because the crime victim is not available at a particular point in the trial ... ." 365 In light of its obligations to accord victims their rights and to enforce those rights, the government should at least inform the court when a victim has concerns about a transfer.

Rule 21 - Victims' Views Considered Regarding Transfer for Prejudice The Proposals:

I proposed that Rule 21 be amended to require consideration of the victim's interest in whether a case should be transferred as follows:

(e) Victims' Views. The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court shall consider the views of the victim in making any transfer decision. 366

360 CVRA Subcommittee Memo, supra note 66, at 17.
361 Id. (emphasis added).
362 Cf. State v. Casey, 2002 UT 29, PP 9-13, 44 P.3d 756 (noting prosecutors' obligation to relay to the court victim's request to be heard).
363 18 U.S.C. § 3771(c)(1) (2006).
364 Id. § 3771(d)(1).
365 150 Cong. Rec. S10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
366 Cassell, Proposed Amendments, supra note 4, at 880.

DAVID SCHOEN

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