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2005 B.Y.U.L. Rev. 835, *880

Article III and the public's First Amendment right of access to trials give constitutional dimensions to the victim's interest in transfer decisions.

[*881] Victims may have compelling interests in observing the trial in their local community. 200 Traveling to a remote location to watch the trial may be financially difficult for many victims and impossible for indigent victims. Moreover, forcing victims to travel to distant communities alone may deprive them of the accompaniment and support of family and friends, which may be especially important when observing emotionally charged court proceedings.

Defendants, too, have the right to have cases tried locally. Under the Sixth Amendment, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... ." 201 This right might be viewed as the defendant's to assert or waive as circumstances dictate. For federal cases, however, the vicinage right is not exclusively placed in the hands of the defendant. Instead, Article III provides that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes have been committed." 202

This difference in language supports the reading that the federal provision is a structural guarantee designed to protect broader interests than the defendant's alone. 203 Moreover, the provision provides for trial in the state where the crime was committed. In most cases, this state would be where the victim resided; whether the defendant also resided in that state would be incidental.

An understanding of the Article III provision as protecting the community's interest is bolstered by the Supreme Court's decisions on right of public access to trials. In cases such as Richmond Newspapers, Inc. v. Virginia, 204 the Court has held that a guarantee of the public's right to attend trials is implicit in the First Amendment. Compelling victims' interests underlie this guarantee. As the Court has explained, "the presence of interested spectators [*882] may keep [the defendant's] triers keenly alive to a sense of their responsibility and to the importance of their functions." 205 In addition, "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct." 206 As Justice Blackmun has emphasized, "The victim of the crime, the family of the victim, [and] others who have suffered similarly ... have an interest in observing the course of a prosecution." 207 Victims are vitally interested in observing criminal trials because society has withdrawn "both from the victim and the vigilante the enforcement of criminal laws, but [it] cannot erase from people's consciousness the fundamental, natural yearning to see justice done - or even the urge for retribution." 208 To be sure, transferring a trial to a distant city may not flatly violate the public right of access to a trial, but it can surely burden the rights of the public, including the victim, which suggests that victims ought to be heard before any such decision is made.

The Article III vicinage provision and the public right of access to trials provide constitutional underpinnings for construing the victim's rights under the CVRA to include a right to be heard on transfer proceedings. In addition, Congress has mandated that

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200 See generally Beloof, Cassell & Twist, supra note 15, 392-99 (reviewing case law on the victim's interest in venue decisions).

201 U.S. Const. amend. VI (emphasis added).

202 Id. art. III, 2, cl. 3 (emphasis added).

203 See Steven A. Engel, The Public's Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. Rev. 1658, 1687 (2000); see also Drew L. Kirshen, Vicinage, 29 Okla. L. Rev. 803 (1976).

204 448 U.S. 555 (1980).

205 Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979) (internal citation omitted).

206 Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984).

207 Gannett Co., 443 U.S. at 428 (Blackmun, J., concurring in part and dissenting in part).

208 Richmond Newspapers, 448 U.S. at 571.

DAVID SCHOEN

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