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2007 Utah L. Rev. 861, *900

The Advisory Committee did not propose any change to Rule 15. 216

Discussion:

Rule 15 authorizes depositions for the purpose of preserving evidence for trial, 217 thus, such depositions are an extension of the trial. Victims, accordingly, have the right to attend such proceedings, if they are public, 218 under the same conditions governing their attendance at trial. To avoid any confusion over this issue, the proposed rule change directly states that fact.

The Advisory Committee declined to adopt this recommendation, concluding that depositions "do not fall within the CVRA, which refers only to the victim's right not to be excluded from 'public court proceedings.'" 219 But here, again, the Committee has taken too narrow a view of the CVRA. It is simply unfair to victims to exclude them from a deposition in a criminal case - and, thus, a violation of the CVRA's command that victims be treated with fairness.

The simplest proof of this conclusion is to consider the rights of criminal defendants at depositions. Rule 15 directly guarantees criminal defendants a right to attend a deposition. 220 Originally the rule was silent on a defendant's presence, but in the 1975 enactment of the rule, 221 a defendant was guaranteed the right to attend. 222 Presumably, a major reason the Advisory Committee added this language [*901] was to ensure fairness to defendants. 223 Indeed, after an indictment, "Rule 15 depositions might constitute a 'critical stage' in a prosecution - requiring the presence of counsel - because of the potential consequences of such depositions at trial." 224 Just as the Advisory Committee acted in 1975 to ensure defendants were treated fairly at criminal depositions, it should now do the same for victims.

Victims also deserve the right to attend pretrial depositions because they are now participants in the criminal justice process. As the Fifth Circuit explained in reversing a trial court which had allowed an ex parte deposition, "depositions are never ordered where one party to the suit can be present, ask the questions, and hear the answers, and the opposing party in the case is not only prevented from being present and asking questions, but is also denied even the opportunity to know what the questions and answers are." 225 The Fifth Circuit further noted that "such a procedure is not only wholly unauthorized, it is contrary to the most basic presuppositions of our adversary system of litigation." 226 Because a crime victim is now "an independent

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216 Proposed Amendments, supra note 71.

217 See, e.g., United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1994).

218 Cf. United States v. L.M., 425 F. Supp. 2d 948, 957 (N.D. Iowa 2006) (finding juvenile proceedings to be covered by the CVRA only insofar as they are public court proceedings).

219 CVRA Subcommittee Memo, supra note 66, at 17 (emphasis in original) (quoting 18 U.S.C. § 3771(a)(3)(2006)).

220 Fed. R. Crim. P. 15(d)(1)-(2).

221 The Advisory Committee recommended various changes to the rule in 1974, which Congress modified somewhat in 1975. See Wright, supra note 210, § 241, at 7-8. The changes discussed in this Article were initiated by the Advisory Committee.

222 Wright, supra note 210, § 244, at 37.

223 Part of the rationale may have also been to facilitate admission of the deposition testimony at trial, as a defendant has a right to confront adverse witnesses at trial. But the Confrontation Clause does not always guarantee defendants a right to attend a deposition, see, for example, United States v. Salim, 855 F.2d 944, 955 (2d Cir. 1988), so the defendant's right to attend the deposition must rest on a broader justification than implementing constitutional requirements.

224 United States v. Hayes, 231 F.3d 663, 674 (9th Cir. 2000).

225 In re United States, 878 F.2d 153, 157 (5th Cir. 1989) (emphasis in original).

226 Id.

DAVID SCHOEN

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