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2005 B.Y.U.L. Rev. 835, *911

would cover such situations by allowing victims who are present at a hearing to be heard on issues "directly" affecting their rights.

[*912]

Rule 44.1 - Discretionary Appointment of Counsel for Victim

The Proposal:

The court's discretionary authority to appoint counsel for a victim should be included in a new rule as follows:

Rule 44.1 Counsel for Victims.

When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising his or her rights.

The Rationale:

An argument could be made that the CVRA guarantees crime victims the right to appointed counsel. After all, the CVRA guarantees victims the right to be "treated with fairness" and fairness can be understood as embracing the assistance of counsel. 309 But on closer examination, it becomes clear that nothing in the CVRA directly mandates counsel for victims. As Senator Kyl explained, "This bill does not provide victims with a right to counsel but recognizes that a victim may enlist counsel on their own." 310

While the CVRA does not require judges to appoint counsel for victims, nothing in it prevents judges from doing so in appropriate cases, particularly under prevailing case law demonstrating that federal courts have inherent authority to make such appointments. Because this authority may not be well known to judges (or to victims), the authority should be clearly laid out in the Federal Rules of Criminal Procedure.

A number of federal courts have recognized inherent judicial authority to appoint lawyers for indigent litigants in both civil and criminal cases. 311 While these cases do not directly involve [*913] appointment of counsel for crime victims, their principles

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309 Cf. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (discussing "fairness" to the defendant as a reason for recognizing a right to appointed counsel).

310 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl).

311 See, e.g., Powell v. Alabama, 287 U.S. 45, 73 (1932) (holding, in a capital case, that courts have the power to appoint counsel and that "attorneys are officers of the court, and are bound to render service when required by such an appointment"); United States v. Bertoli, 994 F.2d 1002, 1015-18 (3d Cir. 1993) (holding that the court has inherent power to order defendant's retained law firm to remain as standby counsel at a criminal trial when defendant elects to represent himself pro se); United States v. Accetturo, 842 F.2d 1408, 1412-16 (3d Cir. 1988) (holding that courts have inherent power to appoint counsel during a criminal trial proceeding but that the power does not extend to appointing lawyers licensed in other states); United States v. Bowe, 698 F.2d 560, 566-67 (2d Cir. 1983) (noting that a court has inherent authority to appoint counsel for an indigent witness who may incriminate herself during testimony in a criminal case); Williamson v. Vardeman, 674 F.2d 1211, 1212-16 (8th Cir. 1982) (upholding a state court judge's appointment of pro bono counsel in criminal case as constitutional although noting that forcing an attorney to advance his own funds may be unconstitutional); Tyler v. Lark, 472 F.2d 1077, 1079 (8th Cir. 1973) (noting that in civil rights cases, "representation of indigents upon court order has been a traditional obligation of the lawyer which he assumes when he becomes a member of the bar"); Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965) (holding, in a criminal case, that lawyers implicitly consent to be appointed by courts pro bono when accepting a license to practice law); United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir. 1965) (holding, in a criminal case, that there is "an obligation on the part of the legal profession to represent indigents upon court order, without compensation"). But cf. Colbert v. Rickmon, 747 F. Supp. 518, 527 (W.D. Ark. 1990) (holding that courts have no inherent power to order attorneys to represent indigent clients). See generally Jerry L. Anderson, Court-Appointed Counsel: The Constitutionality of Uncompensated Conscription, 3 Geo. J. Legal Ethics 503 (1989) (discussing the trend against requiring lawyers to take uncompensated court appointments); Bruce Andrew Green, Court Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81 Colum. L. Rev. 366 (1981) (discussing the constitutionality of pro bono court appointments); Judy E.

DAVID SCHOEN

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