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ARTICLE: Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims' Rights Act

2005

Reporter
2005 B.Y.U.L. Rev. 835 *

Length: 36451 words

Author: Paul G. Cassell*

* Professor of Law for the S.J. Quinney College of Law of the University of Utah and United States District Court Judge for the District of Utah. Thanks to Doug Beloof, Janna Tucker Davis, Meg Garvin, Wendy Murphy, Judge James Orenstein, and Steve Twist; to my able law clerks Ann Bauer, Tim Conde, Tyler Green, Felise Thorpe Moll, Justin Starr, and Stewart Young; and especially to my wife Trish for all her support. I write this article as a law professor, not as a judge. It is not intended to comment on any pending cases and implies no positive commitment on legal issues that may arise in cases that come before me in my court.

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I. Introduction

Crime victims are virtually absent from the Federal Rules of Criminal Procedure. The sixty federal rules comprehensively cover every aspect of federal criminal proceedings - from initial appearance through preliminary hearing, arraignment, acceptance of pleas, trial, and sentencing. Yet the rules substantively mention victims only once, briefly recognizing the right of some victims to speak at sentencing. 1

The federal rules can no longer leave victims unmentioned. In October 2004, Congress passed and President Bush signed into law the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act (CVRA). 2 The CVRA transforms crime victims into participants in the criminal justice process by (among other things) guaranteeing them notice of court hearings, the right to attend those hearings, and the opportunity to testify at appropriate points in the process. These new victims' rights will reshape the federal criminal justice system and force significant changes to the Federal Rules of Criminal Procedure to reflect the victim's expanded role. This Article offers comprehensive proposals for changing the federal rules to both implement the CVRA and reflect sound public policy. The CVRA dictates changes like these to the Federal Rules of Criminal Procedure because only by integrating victims into the federal rules will Congress's goal of making victims participants in the process be fully realized.

This Article is divided into five parts. Following this introduction, Part II reviews the current absence of victims from the federal rules. Surprisingly, even where the rules cover issues of great concern to victims, victims somehow go unmentioned.

1 See Fed. R. Crim. P. 32(i)(4)(B); discussion infra note 3 and accompanying text.

2 Crime Victims' Rights Act, Pub. L. No. 108-405, 118 Stat. 2261 (2004) (codified at 18 U.S.C.A. 3771 (West 2004 & Supp. 2005)). The CVRA was part of a much larger piece of legislation that addressed a variety of subjects, known as the "Justice for All Act." See generally Steven J. Twist, On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, Nila Lynn Crime Victims' Rights Act, 9 Lewis & Clark L. Rev. (forthcoming 2005).

DAVID SCHOEN

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