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Page 59 of 78

2007 Utah L. Rev. 861, *943

Rule 60. Victims

(a) Rights of Victims.

. . . .

(3) Right to Be Heard.

The court must permit a victim to be reasonably heard at any public proceeding in the district court concerning release . . . involving the crime. 466

Discussion:

The Advisory Committee's global proposal gives victims the right to be "heard" on release decisions; but it fails to spell out what effect, if any, the [*944] victim's statement would have after the court heard the victim. In other words, the Advisory Committee proposal seemingly codifies an empty gesture.

In contrast, my proposal would take the straightforward and important step of requiring a court to consider the views of the victim in determining any release decision. 467 That requirement is added directly into the rule governing release decisions - Rule 46. Adding a specific rule with specific consequences is far preferable to the Advisory Committee's approach and is consistent with the CVRA's goal of ensuring "reasonable conditions of pre-trial and post-conviction relief that include protections for the victim's safety." 468

Rule 48 - Victims' Views on Dismissal to be Considered The Proposals:

I proposed that the court should be required to consider the views of victims in deciding whether to grant a government's motion to dismiss a case as follows:

Rule 48. Dismissal

(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent. In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims. 469

The Advisory Committee proposed no change to this rule. 470

Discussion:

The Advisory Committee declined to adopt this recommendation for several reasons:

The Subcommittee recognized that victims will have a great interest in whether charges are dismissed. The CVRA does not, however, explicitly address dismissals, and it speaks only of not excluding the [victim] from, and providing the [victim with] ... a right to be reasonably heard at public proceedings in the district court. If the government moves for dismissal there is ordinarily no public proceeding. (When there is a [*945] public proceeding, the victim's right not to be excluded, and to be reasonably heard is provided for in Rule [60].)

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466 Proposed Amendments, supra note 71, R. 60(a)(3), at 16.

467 Existing law has places where a victim's views could profitably be brought to bear. See, e.g., 18 U.S.C. § 3142(c) (court to consider whether release of the defendant "will endanger the safety of any other person").

468 See, e.g., 150 Cong. Rec. S10910, S10910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).

469 Cassell, Proposed Amendments, supra note 4, at 918.

470 See Proposed Amendments, supra note 71 (showing no proposed change for Rule 48).

DAVID SCHOEN

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