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2005 B.Y.U.L. Rev. 835, *853

While this argument is legally precise, as a practical matter, compelling reasons justify amending the federal rules to include victims. Congress intended that the CVRA's new rights not be "simply words on paper," but rather "meaningful and functional" reforms. 100 To that end, Congress mandated that courts shall "ensure" that crime victims are "afforded the rights" conveyed by the CVRA. 101 To effectively ensure that victims' rights are protected, these rights must become part of the warp and woof of the criminal process. That can occur only if the federal rules - the day-to-day operations manual of the courts - spell out how to integrate victims into the process.

Judges and practitioners frequently refer to the Federal Rules of Criminal Procedure for guidance as to how to conduct hearings. If victims' rights are left out of the federal rules, the strong possibility exists that courts may mistakenly disregard victims' rights under the CVRA. A good illustration comes from Rule 11, which spells out in some detail how judges should conduct a hearing accepting a plea. The judge is required to personally inform the defendant of certain specified rights and ensure that the defendant understands he will be waiving those rights. 102 The judge must also determine that the defendant is voluntarily entering the plea and that there is a factual basis for the guilty plea. 103 Under the CVRA, victims now also have the right to be heard before the judge accepts any plea. 104 This is a new right, 105 which judges are not accustomed to administering. Unless the victim's right to be heard is specifically spelled out in Rule 11's plea procedures, some judges may inadvertently disregard it.

[*854] The Oklahoma City bombing case further demonstrates how courts sometimes blindly follow the federal rules without considering superseding statutes. In that case, the court excluded victim-witnesses from certain proceedings, relying solely on Federal Rule of Evidence 615 in making its determination. In denying the witnesses entrance to the proceedings, the court was apparently unaware of the provision in the Victims' Rights and Restitution Act protecting a victim's right to attend. 106 This deficiency was called to the attention of the Advisory Committee on the Federal Rules of Evidence. 107 The committee acknowledged the need to include victims in the evidence rules and later added a new provision reflecting the victim's right to attend. 108

One reason for including victims' rights in the rules is to avoid litigation about the negative inferences that might be drawn if victims' rights are not in the rules. It is a well-settled principle of statutory construction that expressio unius est exclusio alterius (the expression of one thing implies the exclusion of the other). This canon of construction applies to the federal rules as much as to statutes. 109 Because the rules repeatedly spell out situations in which the defendant has the right to have his interests considered but say nothing about victims, it might be argued that the rules have implicitly determined that a victim's interests are irrelevant. To return to the Rule 11 plea example, given that the criminal rules specify that a court must address the defendant but lack any comparable requirement for victims, it might be inferred that victims cannot speak at plea hearings. Any

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100 150 Cong. Rec. S4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).

101 18 U.S.C.A. 3771(b) (West 2004 & Supp. 2005).

102 Fed. R. Crim. P. 11(b)(1).

103 Id. at 11(b)(2), (b)(3).

104 18 U.S.C.A. 3771(a)(4).

105 Cf. 42 U.S.C. 10606(b) (listing victims' rights; right to be heard at pleas not included) (repealed by 18 U.S.C. 3771).

106 See supra note 45 and accompanying text.

107 See Letter from Paul G. Cassell to Advisory Comm. (on file with author).

108 See Fed. R. Evid. 615 advisory committee's notes (1998 Amendments).

109 See, e.g., Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).

DAVID SCHOEN

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