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2007 Utah L. Rev. 861, *939

both approved broadening that rule to give all victims the right to speak. 437 (The Judicial Conference withdrew this proposed rule to allow reconsideration in light of the CVRA.) The CVRA gave victims the right to be "reasonably heard" at sentencing. Of course, the CVRA's obvious goal was to significantly expand the rights of crime victims. With respect to the right to speak in particular, one of the CVRA's primary sponsors stated: "this section would fail in its intent if courts determined that written, rather than oral communication, could generally satisfy this right." 438 Yet, in the wake of all this, the Advisory Committee now proposes a rule that does not guarantee that victims have the right to speak, leaving this to the courts to construe on a case-by-case basis. This retreat on victims' rights truly stands the CVRA on its head.

The Advisory Committee should directly state that victims have the right to speak at sentencing, as the only courts to have reached the issue have held. 439 For [*940] instance, in United States v. Kenna, Judge Kozinski 440 explained that the CVRA's legislative history "discloses a clear congressional intent to give crime victims the right to speak at proceedings covered by the CVRA." 441 The court first highlighted the following statement by Senator Kyl:

It is not the intent of the term "reasonably" in the phrase "to be reasonably heard" to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. 442

Senator Dianne Feinstein, another primary sponsor of the bill, remarked that Senator Kyl's understanding of the bill was "[her] understanding as well." 443

In addition to these floor statements, the Kenna court cited a committee report for the proposed constitutional amendment to protect victims' rights. The Senate Report on the amendment - an amendment that contained language nearly identical to the language in the eventually enacted CVRA - reads that:

The victim's right is to "be heard." The right to make an oral statement is conditioned on the victim's presence in the courtroom .... Victims should always be given the power to determine the form of the statement. Simply because a decision making body, such as the court ... has a prior statement of some sort on file does not mean that the victim should not again be offered the opportunity to make a further statement .... The Committee does not intend that the right to be heard be limited to "written" statements, because the victim may wish to communicate in other appropriate ways. 444

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437 See Advisory Committee on Criminal Rules, Criminal Rules Docket (Historical), http://www.uscourts.gov/rules/Criminal_Docket.pdf (last visited Feb. 22, 2008).

438 150 Cong. Rec. S10910, S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).

439 See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1015-16 (9th Cir. 2006); United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345 (D. Utah. 2005); see also United States v. Turner, 367 F. Supp. 2d 319, 333 (E.D.N.Y. 2005) (opining in dicta that § 3771(a)(4) "requires the victim to be given an opportunity actually to be "heard' rather than afforded some alternate means of communicating her views"); cf. United States v. Marcello, 370 F. Supp. 2d 745, 749 (N.D. Ill. 2005) (holding that in the unique context of detention hearings, victims have no right to speak, particularly when the witness has no direct information to provide the court).

440 See generally Douglas E. Beloof, Judicial Leadership at Sentencing Under the Crime Victims' Rights Act: Judge Kosinki in Kenna and Judge Cassell in Degenhardt, 19 Fed. Sent'g Rep. 36 (2006) (identifying victims of crime as participants at sentencing by analyzing the CVRA and the significant caselaw).

441 Kenna, 435 F.3d at 1016.

442 Id. at 1015 (quoting 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyle)).

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

444 Id. at 1016 (quoting S. Rep. No. 108-191, at 38 (2003)).

DAVID SCHOEN

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