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2005 B.Y.U.L. Rev. 835, *908

be closed under existing laws. This provision [of the CVRA] is not intended to alter those laws or their procedures in any way ..." 292

Proposed Rule 43.1(b) turns to the potentially complex subject of whether the court may go forward with a proceeding when the victim is not present. Of course, if the victim has been properly notified but has elected not to attend the proceeding, no problem arises. The difficult issue is what to do when the victim is absent because of lack of notice of the proceeding. It could be argued that the court has no choice but to reschedule such a proceeding, just as it would be required to reschedule a proceeding when the defendant had not received notice. The CVRA mandates that courts "shall ensure" that crime victims are accorded their rights, 293 and one of the rights is notice for court proceedings. 294 If the victim has not received notice of a proceeding, then going forward with the proceeding arguably violates the victim's rights under the CVRA. As Senator Kyl explained:
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It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is equivalent to a violation of the right itself. 295

Proposed Rule 43.1(b) stakes out a position more limited than an absolute requirement of proper victim notification. Except for trials and sentencings (which are discussed below), proposed Rule 43.1(b) would allow the court to move forward with a proceeding without notice to the victim provided that three conditions are met: (1) doing so is in the interests of justice, (2) the court provides prompt notice to the victim of the court's action and of the victim's right to seek reconsideration of the action if a victim's right is affected, and (3) the court ensures that notice will be properly provided to the victim for all subsequent public proceedings.

Each of these three conditions serves an important purpose. To begin with, the court should not go forward unless the interests of justice are served - the first requirement. The court should also notify the victim of the opportunity to seek reconsideration of the court's action if a victim's right is affected - the second requirement. For example, if the court holds a bail hearing without proper notice to the victim and decides to release a defendant, the victim should be advised of this fact and of the right to ask the court to reconsider that bail decision. (The CVRA, as noted earlier, gives victims the right to provide information regarding bail decisions. 296) Finally, if the court is moving forward without proper notice to a victim at a particular proceeding, it seems only fair that the problem be solved for future proceedings - the third requirement.

For two important proceedings - trial and sentencing - the proposed rule would bar a court from moving forward without proper notice to the victim. This is consistent with the CVRA's directive that "in any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights [in the CVRA]." 297 If the victim has not been notified of a [*910] trial or sentencing, the only way the court can "ensure" that the victim's right is protected is to delay the trial or sentencing until the victim receives notice. This is entirely appropriate; a victim of a crime deserves the opportunity to see the trial of her victimizer and to speak at sentencing. A modest delay in these proceedings is a small price to pay for respecting the victim's rights. Moreover, neither a trial nor a sentencing can be repeated. Double jeopardy principles may well

292 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (colloquy between Sen. Kyl and Sen. Feinstein) (explaining that "in this regard, it is not our intent to alter 28 C.F.R. Sec. 50.9 in any respect").

293 18 U.S.C.A. 3771(b).

294 Id. 3771(a)(2).

295 150 Cong. Rec. S10,910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).

296 See 18 U.S.C.A. 3771(a)(4) (discussed at supra notes 104-10 and accompanying text).

297 Id. 3771(b) (emphasis added).

DAVID SCHOEN

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