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ARTICLE: Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure

2007

Reporter
2007 Utah L. Rev. 861 *

Length: 59852 words

Author: Paul G. Cassell*

* Professor of Law, S.J. Quinney College of Law of the University of Utah, Judge, U.S. District Court for the District of Utah, 2002-07. Thanks to Sara Sun Beale, Doug Beloof, Doug Berman, Russell Butler, Matt Cannon, Meg Garvin, Nancy King, Erik Luna, Peter McCabe, Benjamin McMurray, Ross McPhail, Dan Medwed, Wendy Murphy, Daphne Oberg, Jim Oleson, Judge James Orenstein, Alice Ristroph, Greg Skordas, Felise Thorpe Moll, Steve Twist, Stewart Young, and especially my wife Trish.

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I. Introduction

Federal courts should treat crime victims fairly in the criminal process. In a nod to that goal, the Advisory Committee on the Federal Rules of Criminal Procedure (Advisory Committee) has circulated for public comment proposed amendments to the Federal Rules of Criminal Procedure (the Rules) regarding crime victims' rights. These amendments attempt to implement the recently-enacted Crime Victims' Rights Act (CVRA), 1 which guarantees crime victims a series of rights, including the right to be treated fairly. Unfortunately, the proposed amendments are mere tentative, half measures that do not begin to fully protect crime victims.

This Article contends that the Advisory Committee should broaden its vision of the proper role for crime victims and recommend far more expansive victim protections. In the CVRA, Congress articulated specific rights for crime victims, such as the right to be notified of court hearings, to attend those hearings, and to speak at appropriate points in the process. 2 But along with these specific rights came the sweeping requirement that crime victims "be treated with fairness and with respect for the victim's dignity and privacy." 3 This congressional command must not be ignored. In addition, entirely apart from any congressional dictate, crime victims deserve fair treatment in the federal system. Acting for the federal judiciary, the Advisory Committee should make certain that the Rules fully reflect victims' interests rather than allow the initiative for protecting victims to pass to other branches of government.

This Article proceeds in five parts. Following this Introduction, Part II reviews events leading to the recently circulated amendments. The amendments were prompted by the CVRA - an act passed by Congress in 2004 to protect victims' rights through the federal criminal process. To comply with the CVRA, the federal criminal rules had to be amended in many places,

1 Pub. L. No. 108-405, § 102(a), 118 Stat. 2260, 2261-62 (codified as amended at 18 U.S.C. § 3771 (Supp. 2006)).

2 18 U.S.C. § 3771 (a)(2)-(4).

3 Id. § 3771(a)(8).

DAVID SCHOEN

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