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2005 B.Y.U.L. Rev. 835, *868

of, and consider victims' views about, prospective plea negotiations." 158 Twenty-nine states already require prosecutors to "consult with" or "obtain the views of" victims at the plea agreement stage. 159

The proposed rule helps to implement not only a victim's right to be heard at plea proceedings but also the right to "confer with the attorney for the Government." 160 Given that victims have the right to confer, the conferring should take place at the most salient points in the process. As Senator Feinstein explained, "This right [to confer] is intended to be expansive. For example, the victim has the [*869] right to confer with the Government concerning any critical stage or disposition of the case." 161 Because the overwhelming majority of federal criminal cases are resolved by a plea, a conference between the victim and the prosecutor regarding the plea will be critical in most cases. Reflecting that fact, the rules should follow the approach taken by the majority of states, directing prosecutors to consult with victims about pleas.

Rule 11(c)(2) - Court To Be Advised of Victim Objections to Plea

The Proposal:

Prosecutors (and victims' attorneys) should be required to advise the court whenever they are aware that the victim objects to a proposed plea agreement as follows:

(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera. When a plea is presented in open court, the attorney for the government or the attorney for any victim shall advise the court when the attorney is aware that the victim has any objection to the proposed plea agreement.

The Rationale:

When an attorney for the victim or for the government is aware that a victim objects to a plea, that information should be relayed to the court. In those rare cases where the victim has an attorney, the attorney will obviously raise the victim's objection. The proposed rule change clarifies the prosecutor's corresponding and equal obligation to communicate this information to the court.

The CVRA appears to obligate prosecutors to relay a victim's objection to the court, commanding them to use their "best efforts" to enforce victims' rights. 162 Part of those "best efforts" would seem to be conveying objections to the court. Victims are often untrained in the law and unexpectedly thrust into criminal proceedings; they may well believe that prosecutors automatically relay to the court [*870] their objections to the plea. The proposed rule avoids such confusion by requiring the prosecutor to notify the court of a victim's concern. The rule is limited to situations where the prosecutor is aware of an objection.

This approach is consistent with the instructive case of State v. Casey, 163 which considered whether a victim's objection to a plea made to a prosecutor was sufficient to trigger the victim's right to be heard under the Utah Constitution. 164 In Casey, the victim told the prosecutor that she opposed a plea arrangement. The prosecutor refused to convey the victim's concern to the

158 2005 A.G. Guidelines, supra note 38, at 30 (defining what can be considered in determining whether notice is reasonable in a particular case); see also Office for Victims of Crime, supra note 137, at 75 ("Prosecutors should make every effort ... to consult with the victim on the terms of any negotiated plea ... .").
159 Office for Victims of Crime, supra note 137, at 75.

160 18 U.S.C.A. 3771(a)(5) (West 2004 & Supp. 2005).
161 150 Cong. Rec. S4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).

162 18 U.S.C.A. 3771(c).

163 44 P.3d 756 (Utah 2002). I represented the victim in this case.

164 See generally Nicole G. Farrell, Recent Case Development, 2003 Utah L. Rev. 716.

DAVID SCHOEN

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