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76 CASSELL ET AL. [Vol. 104]

invokes the CVRA’s definition of crime “victim,” its legislative intent, and
its structure, a closer reading of each demonstrates little support for the
notion that crime victims must await the formal filing of charges before
accruing CVRA rights.

A. OLC’S MISREADING OF THE CVRA’S DEFINITION OF “VICTIM”

OLC’s lead argument is that the CVRA’s definition of “victim”
presupposes that criminal charges have been formally filed.83 The CVRA
defines a “victim” who is protected as “a person directly and proximately
harmed as a result of the commission of a Federal offense.”84 Focusing on
the word “offense,” OLC concedes that it does not “conclusively resolve”
the question of when rights attach. Nevertheless, OLC claims that the word
“naturally suggests that a person’s status as a ‘crime victim’ can only be
determined after there has been a formal decision to charge a defendant
with a particular Federal offense.”85 OLC goes on to elaborate:

Under this reading, the earliest that a “crime victim” under the Act could be identified
would be upon the filing of a criminal complaint—that is, at the earliest point at which
there is a sworn written statement of probable cause to believe that a particular
defendant committed an identified Federal offense and hence the first point at which it
is possible with any certainty to identify a “crime victim” directly and proximately
harmed by the commission of that offense.86

OLC is disingenuous in asserting that the “first point” at which a
person has been harmed by a federal crime arises only after a criminal
complaint has been filed. The Department routinely makes such
determinations at earlier points in criminal cases, such as when it sends a
“target letter” to a defense attorney during a grand jury investigation.87
Indeed, OLC remarkably ignores the fact that the Department is directly
required to identify victims of a crime before the filing of a criminal
complaint, both by statute and through internal policy directives.

The Victims’ Rights and Restitution Act of 1990 (VRRA)88 requires
the Department to identify victims before the filing of a criminal complaint.

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83 OLC CVRA Rights Memo, supra note 2, at 6.
84 18 U.S.C. § 3771(e) (2012) (emphasis added).
85 OLC CVRA Rights Memo, supra note 2, at 5.
86 Id.
87 A target letter explains the procedural process underlying an indictment and places the
defendant on notice of the general nature of the government’s criminal investigation. See
U.S. DEP’T OF JUSTICE, TITLE 9: U.S. ATTORNEYS’ CRIMINAL RESOURCE MANUAL § 160,
[hereinafter CRIMINAL RESOURCE MANUAL] available at http://goo.gl/YHLDke (providing an
example target letter); infra Part III.A (developing this point further).
88 Pub. L. No. 101-647, 104 Stat. 4820 (codified as amended at 42 U.S.C. §§ 10601,
10606–07 (2006)).

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