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2005 B.Y.U.L. Rev. 835, *837

Part II then discusses the crime victims' rights movement and concludes with a brief sketch of the events leading to the CVRA's enactment.

[*838] Part III discusses why it is necessary to amend the federal criminal rules to incorporate victims. Although the CVRA is a federal statute that automatically trumps any conflicting procedural rule, procedural rules drive day-to-day courtroom practices. Given that Congress was particularly concerned about integrating victims into the fabric of the criminal justice system, the Advisory Committee on Criminal Rules should amend the rules to directly reflect the CVRA's requirements.

Part IV provides a rule-by-rule analysis of the changes needed in the Federal Rules of Criminal Procedure to implement the CVRA. Of particular importance is new language protecting crime victims' rights to be notified of and to be present and heard at public criminal proceedings. Congress should also implement the right to notice in a new rule mandating that prosecutors keep victims apprised of criminal proceedings. In addition, the rules should also reflect victims' rights to attend court proceedings and to testify at bail, plea, and sentencing hearings. Part IV also discusses other significant changes needed to conform the rules to the CVRA: defining "victim," giving victims notice before confidential information is subpoenaed, allowing victims to be heard before cases are transferred to remote districts, giving victims access to relevant parts of the pre-sentence report, permitting courts to appoint counsel for victims, and protecting the victim's right to proceedings free from unreasonable delay. Part V contains a brief conclusion.

II. The Missing Victims of Crimes

Crime victims are absent from the Federal Rules of Criminal Procedure. Yet this is not because victims lack vital interests in criminal cases. As the CVRA recognizes, victims have vital concerns throughout the criminal process. This section recounts the absence of victims from the federal criminal rules, then contrasts that absence with the aims of the victims' rights movement. The movement has argued successfully before state legislatures and Congress for the recognition of crime victims' rights - with these efforts culminating in the passage of the CVRA, protecting crime victims' rights in the federal system.

[*839]

A. The Victim's Absence from the Current Federal Criminal Rules

The sixty Federal Rules of Criminal Procedure provide the architecture for the entire federal criminal court process, including initial appearance, preliminary hearing, arraignment, acceptance of pleas, trial, and sentencing. One would expect that the rules would frequently mention crime victims, given the subjects - such as bail, scheduling, and restitution - that directly concern victims. Yet amazingly, the current rules substantively use the word "victim" only a single time.

The single direct reference to victims is Rule 32(i)(4)(B), which directs that before imposing a sentence, "the court must address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence." 3 The word "victim" appears in passing in only two other rules: Rule 12.4 requires the government to disclose to the court any organizational "victim," 4 and the heading of Rule 38(e) mentions "Restitution" and "Notice to Victims," but the text of the rule does not contain the term "victim." 5

Victims deserve far more than the single reference in Rule 32. While later parts of this Article work through the rules section-by-section to illustrate where victims have been unfairly ignored, 6 a few examples here will prove the point. The rules currently fail to give victims any right to be heard regarding whether a judge should accept a plea, even though the judge must evaluate the public interest in deciding whether to do so. 7 The rules fail to require notice to victims before their confidential

3 Fed. R. Crim. P. 32(i)(4)(B).
4 Id. at 12.4(a)(2).
5 Id. at 38(e) (mentioning "victim" in the heading of the rule).
6 See discussion infra Part IV.
7 See Fed. R. Crim. P. 11; discussion infra notes 148-53 and accompanying text.

DAVID SCHOEN

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