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104 J. Crim. L. & Criminology 59, *81

already be providing reasonable protection for a victim before an offender is indicted, regardless of how the CVRA is interpreted. 123

The VRRA, however, does not contain a right to confer and a right to fair treatment and respect for the victim's dignity. Therefore, if victims are going to receive these statutory rights before trial, these rights must be found in the CVRA. With regard to the CVRA provision that victims have the "reasonable right to confer with the attorney for the Government in the case," 124 OLC contends that "the phrase 'in the case' implies the pendency of a judicial proceeding." 125 To bolster its conclusion, OLC then cites Black's Law Dictionary, which includes among its several definitions of the word "case" the definition "a civil or criminal proceeding." 126 But OLC does not acknowledge that Black's Law Dictionary also defines and exemplifies a "case" more broadly as a "criminal investigation ." 127 Thus, Black's Law Dictionary does not help resolve the dispute as to which of the two meanings should be used, as there are clearly differing meanings. While OLC's reading may be a permissible one, so is a pro-victim reading.

OLC also turns to the CVRA's legislative history to bolster its conclusion. But, here again, its analysis is misleading. OLC relies on a passage from Senate floor colloquy between Senators Jon Kyl and Dianne Feinstein regarding the CVRA's scope. In OLC's recounting of the legislative history, the floor statements "emphasize that the right to confer relates to the conduct of criminal proceedings after the filing of charges." 128 For instance, OLC quotes Senator Kyl stating that "under this provision, victims are able to confer with the Government's attorney about proceedings after charging." 129

This is a truncated and deceptive description of the legislative history, so much so that Senator Kyl sent an angry letter to Attorney General Eric Holder complaining about the distortion. On June 6, 2011, the Senator wrote to "express [his] surprise that [OLC is] so clearly quoting [his] remarks out of context." 130 Senator Kyl then went on to observe that the colloquy began by noting that the right to confer "is intended to be expansive." 131 The Senator further discussed various "examples" of when the right to confer applied, including "any critical stage or disposition of the case. The right, however, is not limited to these examples." 132 It was against that backdrop that Senator Kyl gave the example of conferring about proceedings "after charging."

In his letter to Attorney General Holder, Senator Kyl also noted that he had:

made clear that crime victims had rights under the CVRA even before an indictment is filed. For example, ... I made clear that crime victims had a right to consult about both "the case' and "case proceedings' - i.e., both about how the case was being handled before being filed in court and then later how the case was being handled in court "proceedings.' 133

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123 Exactly what "reasonable protection" means, however, remains uncertain. See generally Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, the Crime Victims' Rights Act, and the Victim's Right to Be Reasonably Protected from the Accused, 78 Tenn. L. Rev. 47 (2010) (suggesting the right has not been adequately defined and proposing ways to do so).

124 18 U.S.C. § 3771(a)(5).

125 OLC CVRA Rights Memo, supra note 2, at 8.

126 Id. (citing Black's Law Dictionary, supra note 59, at 243).

127 Black's Law Dictionary, supra note 59, at 244.

128 OLC CVRA Rights Memo, supra note 2, at 9.

129 Id. (emphasis added) (quoting 150 Cong. Rec. 7302 (2004) (statement of Sen. Jon Kyl) (internal quotation marks and citation omitted).

130 Letter from Jon Kyl, supra note 3.

131 Id. (quoting 150 Cong. Rec. S4260, S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Dianne Feinstein)).

132 Id.

133 Id.

DAVID SCHOEN

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