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2007 Utah L. Rev. 861, *879

victims' rights in the [*880] plea process. Because the CVRA guarantees victims a right in the plea process, its dictates will ultimately govern. But only the Advisory Committee can pretermit such needless litigation about how to interpret its rules. In short, it would be much simpler for all concerned if Rule 11 - and, indeed, all the other rules - were redrafted to simply fold victims in at the appropriate point in the process.

Finally, one of the overriding goals of the CVRA is to dramatically reform the entire approach of the federal criminal justice system. As Senator Feinstein explained "this legislation is meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process." 115 And Senator Kyl added, "[a] central reason for these rights is to force a change in a criminal justice culture which has failed to focus on the legitimate interests of crime victims . . . ." 116 Given Congress's clear intent to change a hostile legal culture, it makes no sense to leave victims to the mercies of litigation to determine the scope of their rights.

For all these reasons, the Federal Rules of Criminal Procedure should be amended not only to implement the narrow rights articulated in the CVRA but also its more open-ended rights, particularly the victim's right to be treated with fairness.

IV. Specific Rule Changes to Comply with the CVRA

Against the backdrop of the statutory command that victims should be treated with fairness, the balance of this Article will compare my specific proposals for amending the Rules with those of the Advisory Committee - attempting to show the strong points of my ideas. For convenience, the Article proceeds sequentially through the Rules from beginning to end, relying in the case of proposed amendments on the Advisory Committee's numbering.

Rule 1 - Definition of "Victim" and "Victim's Representative" The Proposals:

I proposed amending Rule 1 to include a definition of victim and the victim's representatives as follows:

"Victim" means a person directly and proximately harmed as a result of the commission of a federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may [*881] assume the crime victim's rights under these rules, but in no event shall the defendant be named as such guardian or representative. 117

The Advisory Committee instead proposed to cross-reference the statutory definition of "crime victim" as follows:

"Victim" means a "crime victim" as defined in 18 U.S.C. § 3771(e). A person accused of an offense is not a victim of that offense. 118

Discussion:

The rules should be amended to make clear that both a victim and the victim's representative can assert the victim's rights. As an effort in that direction, I proposed amending Rule 1 to include a definition of "victim" as well as a definition of "victim's lawful representative." 119 My definitions were lifted from the CVRA. 120 In response, the Advisory Committee agreed to include a definition of "victim" but left to an Advisory Committee Note the reference to the victim's representative. 121

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115 150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
116 150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).
117 Cassell, Proposed Amendments, supra note 4, at 856-57.
118 Proposed Amendments, supra note 71, R. 1(b)(11), at 1.
119 Cassell, Proposed Amendments, supra note 4, at 852, 856-57.
120 See 18 U.S.C. § 3771(e) (2006); see also United States v. Sharp, 463 F. Supp. 2d 556, 558 (E.D. Va. 2006) (person harmed by former domestic partner of marijuana user was not "victim" entitled to provide victim impact statement pursuant to CVRA).

DAVID SCHOEN

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