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Page 48 of 52

2005 B.Y.U.L. Rev. 835, *917

The CVRA guarantees victims the right "to be reasonably heard" at "any public proceeding ... involving release." 326 A similar right already exists for victims of stalking offenses. 327 This proposed rule simply recognizes a victim's right "to be reasonably heard" and further directs the court to consider the victim's input. The victim's right to be heard would be meaningless if the court did not consider the victim's views. Moreover, existing law appears to recognize that the court should consider the victim's concerns. 328

Rule 48 - Victims' Views on Dismissal To Be Considered

The Proposal:

The court should be required to consider the views of victims in deciding whether to grant a government motion to dismiss charges as follows:
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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.

The Rationale:

This proposed change would implement a victim's right to be "treated with fairness" and to be heard at any proceeding "involving release" of the defendant by requiring the court to consider the views of the victim before granting a government motion to dismiss a charge. The rule already requires leave of court before a dismissal can be approved. In determining whether to grant leave, the court should consider whether dismissal is "clearly contrary to manifest public interest." 329 Among the relevant factors in making this public interest determination is whether the prosecution's motion to dismiss is motivated by "animus towards the victim." 330 The proposed rule would simply require the court to consider the views of the victim in making this determination, leaving the weight to afford those views up to the court.

Rule 50 - Victims' Right to Proceedings Free from Unreasonable Delay

The Proposal:

A victim's right to proceedings free from unreasonable delay should be recognized as follows:

Rule 50. Prompt Disposition

(a) Scheduling Preference. Scheduling preference must be given to criminal proceedings as far as practicable.
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(b) Defendant's Right Against Delay. The court shall assure that the defendant's right to a speedy trial is protected, as provided by the Speedy Trial Act.

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326 18 U.S.C.A. 3771(a)(4).

327 18 U.S.C. 2263.

328 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").

329 United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).

330 In re Richards, 213 F.3d 773, 787 (3d Cir. 2000).

DAVID SCHOEN

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