HOUSE_OVERSIGHT_017743.jpg

Page 29 of 52

2005 B.Y.U.L. Rev. 835, *884

account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that decision. 213

Just as the New Jersey courts have recognized that victims' interests should be considered in transfer decisions, the federal courts should do the same. Therefore, Rule 21 should be amended to allow victims to provide information to the judge on transfer decisions.

Rule 23 - Victims' Views Considered Regarding Non-Jury Trial

The Proposal:

The court should be required to consider the views of victims before allowing waiver of a jury trial as follows:

Rule 23. Jury or Nonjury Trial

(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:

(1) the defendant waives a jury trial in writing;

(2) the government consents; and

(3) the court approves after considering the views of any victims.
[*885]

The Rationale:

In the federal courts the "preferred" trial method is a jury trial. 214 As Justice Blackmun has explained, the public has interests, independent of a criminal defendant, in monitoring judges, police, and prosecutors - and in being educated about "the manner in which criminal justice is administered." 215 Nonetheless, the Supreme Court has concluded that defendants can waive their right to a jury trial. 216 To help protect the general public interest in trial by jury, Rule 23 requires not only prosecutor approval 217 but also judicial approval before proceeding by way of bench trial. This approval requires careful weighing of the competing concerns. The Supreme Court has instructed that

________________________________________________________________________________

213 Id. at 76 (internal citations omitted). The hardship to the victim was established via affidavits from the victim's family provided to the court by the prosecutor.

214 See Singer v. United States, 380 U.S. 24, 35 (1965) ("Trial by jury has been established by the Constitution as the "normal and preferable mode of disposing of issues of fact in criminal cases.'" (citation omitted)). See generally Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 68 (2003).

215 Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., dissenting in part).

216 See Patton v. United States, 281 U.S. 276 (1930). But cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1196-98 (1991) (mounting a strong argument against Patton and noting that before 1930 court decisions had held jury trial could not be waived).

217 Fed. R. Crim. P. 23(a)(2). But cf. Adam H. Kurland, Providing a Criminal Defendant with a Unilateral Right to a Bench Trial: A Renewed Call To Amend Federal Rule of Criminal Procedure 23(a), 26 U.C. Davis L. Rev. 309 (1993) (suggesting that prosecutorial consent should be eliminated by the legislature). See generally ABA Standards for Criminal Justice 15-1.2, cmt. at 15.17 (2d ed. 1980) (concluding that arguments in favor of requiring prosecutorial approval of jury trial waivers outweigh those against).

DAVID SCHOEN

HOUSE_OVERSIGHT_017743