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104 J. Crim. L. & Criminology 59, *84

which a defendant will plead guilty to certain charges. 145 Then, the parties jointly present to the district court a criminal
"information" (that is, a recitation of the charges drafted by the prosecutor but never presented to the grand jury 146) and a plea
agreement, asking the court to file the criminal information and simultaneously accept the guilty plea. As the OLC
memorandum acknowledges, a crime victim would have the right to object to the plea agreement, because the CVRA gives
crime victims the "right to be reasonably heard" at any public proceedings involving a plea. 147 But under OLC's interpretation
of the CVRA, a crime victim has no right to notice of court hearings until the charges are filed. Thus, if the information and
plea are filed simultaneously, as is often the case, two scenarios are possible. A victim could have no prior right to notice of the
proceeding at which the plea was being accepted, or alternatively (if the act of filing the information in the course of accepting
a plea triggers a notification right), the district court would be required to stop in the middle of proceedings and ensure that
notification was belatedly provided. Of course, these difficulties are all avoided if the right to confer is properly construed as
attaching before charges are filed, such as during plea negotiations between prosecutors and defense attorneys.

[*85] More importantly, extending the right in this fashion will not be unduly burdensome for federal prosecutors. After the
OLC memorandum was made public, the Department amended the Attorney General Guidelines for Victim and Witness
Assistance to require prosecutors to make reasonable efforts toward a goal of providing victims with a meaningful opportunity
to offer their views before plea agreements are formally reached. 148 "In circumstances where plea negotiations occur before a
case has been brought, Department policy is that this should include reasonable consultation prior to the filing of a charging
instrument with the court." 149 Thus, Department policy already extends pre-charging rights to victims. The CVRA should be
understood as having the same scope.

OLC also notes that the CVRA right "to be treated with fairness and with respect for the victim's dignity and privacy" is a right
that could apply before charges are filed. 150 Indeed, OLC is forced to concede (as district courts have recognized) that the
"right to be treated with fairness and with respect for the victim's dignity and privacy may apply with great force during an
investigation, before any charging instrument has been filed." 151

OLC nonetheless maintains that the right to fairness only applies after charges have been filed. OLC relies on the canon of
statutory construction noscitur a sociis, meaning that words are known by their companions, 152 for its interpretation of the
CVRA. OLC argues that because the other seven enumerated rights are limited to post-charging situations, the eighth right
should be as well. Of course, this argument assumes that OLC's construction of the other seven rights is correct - a point very
much in dispute. 153 If, for example, the right to confer applies before charges are filed, then presumably noscitur a sociis
would cut the other way - the right to fairness should likewise be construed as applying before charges are filed.

Moreover, OLC omits from its discussion of the fairness provision any assessment of the CVRA's purposes. In construing a
statute, a court must consider the "purpose and context" of the statute. 154 In describing the fairness provision, Senator Kyl

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145 See OLC CVRA Rights Memo, supra note 2, at 9 (acknowledging the potential effect of the CVRA on plea negotiations).

146 See Fed. R. Crim. P. 7(b).

147 18 U.S.C. § 3771(a)(4) (2012); OLC CVRA Rights Memo, supra note 2, at 6-7.

148 Attorney General Guidelines, supra note 52, at 41-42.

149 Id. at 41.

150 OLC CVRA Rights Memo, supra note 2, at 10 (quoting 18 U.S.C. § 3771(a)(8)).

151 Id. (quoting United States v. BP Products North America Inc., No. H-07-434, 2008 WL 501321, at 11 (S.D. Tex. Feb. 21, 2008) (internal
quotation marks omitted)).

152 Id. at 11.

153 See supra Part III.A.

154 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011).

DAVID SCHOEN
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