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2007 Utah L. Rev. 861, *945

In light of the statutory statement in 18 U.S.C. § 3771(d)(6) that nothing in the CVRA "shall be construed to impair the prosecutorial discretion of the Attorney General," as well as the separation of powers issues raised by judicial review of the government's decision to terminate a prosecution, the Subcommittee was not persuaded that the rule should be amended to require the court to consider the victim's views on dismissal. When there is no public court proceeding, the victim's views will be taken into account through the right to confer with the government under 18 U.S.C. § 3771(a)(5). 471

The Advisory Committee's opening premise is clear enough - victims do indeed have "great interest" in whether charges are dismissed. But after this promising start, the Committee's logic is hard to track. The Advisory Committee seems to be of the view that, in situations where a court considers a motion to dismiss at a public proceeding, the victim would be heard. 472 Yet the proposed Rule the Committee cites for this proposition - proposed Rule 60 473 - is actually drafted so narrowly that the victim would have no right to be heard on such a motion. 474

In situations where the court considered a motion to dismiss without a public proceeding, the Advisory Committee takes the view that the CVRA does not "explicitly address" the subject. This view assumes, of course, that the victim's right to fairness does not come into play when the prosecution moves to drop previously filed charges. This assumption is incorrect. Rule 48 already requires leave of court for a dismissal. In determining whether to grant leave, current case law requires the court to consider whether dismissal is "clearly contrary to manifest public interest." 475 The existing caselaw requires that the impact on a victim be considered in addressing a motion to dismiss. A dismissal is "clearly contrary to the public interest" if the prosecutor appears to be motivated by animus toward the victim. 476 Under the command of the CVRA, the victim thus must be treated with fairness when the dismissal motion is addressed, as my proposal provides.

[*946] When the government files a motion to dismiss criminal charges involving a specific victim, the only way to protect that victim's right to be treated fairly is to consider the victim's views on the dismissal. 477 To treat a person with "fairness" is conventionally understood as treating them "justly" and "equitably." 478 A victim is not treated justly and equitably if her views are never before the court.

The Advisory Committee also alludes vaguely to "separation of powers issues raised by judicial review of the government's decision to terminate a prosecution." Here the Advisory Committee may be stepping out of line and questioning the Supreme Court. In 1944, the Court itself added the requirement to Rule 48 that prosecutors obtain leave of court before dismissing any indictment. 479 Thus, if there are separation of powers "issues" about judicial review of dismissals, they have existed for more than half a century by virtue of specific Supreme Court action.

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471 CVRA Subcommittee Memo, supra note 66, at 20.

472 Id. ("When there is a public proceeding, the victim's right not to be excluded, and to be reasonably heard is provided for in Rule [60].").

473 In the subcommittee draft, the rule cited is actually numbered Rule 43.1. See CVRA Subcommittee Memo, supra note 66, at 20. Later, without any substantive change, Rule 43.1 was renumbered as Rule 60.

474 See Proposed Amendments, supra note 71, R. 60, at 15-20 (giving victims a right to be heard only as to proceedings concerning "release, plea, or sentencing") (discussed at infra notes 524-539 and accompanying text).

475 United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).

476 In re Richards, 213 F.3d 773, 787 (3d Cir. 2000); see also United States v. Hamm, 659 F.2d 624, 629-30 (5th Cir. 1981).

477 Accord United States v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).

478 Black's Law Dictionary 633 (Bryan A. Garner ed., 8th ed. 2004) (defining the adjective "fair").

479 See Fed. R. Crim. P. 48 advisory committee's note recounting the history of the 1944 adoption.

DAVID SCHOEN

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