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104 J. Crim. L. & Criminology 59, *90

instance, has noted that if there are any doubts about how to construe the CVRA, this venue provision "sweeps them away." 181
Once again, the language that Congress used leads inexorably to the conclusion that the CVRA extends rights to victims before the filing of criminal charges.

IV. When Pre-charging Rights Attach Under the CVRA

The zeal with which OLC argues against applying CVRA rights before charging raises the question of why it protests so much.
Although OLC never articulated this concern, perhaps OLC worried that pre-charging rights would be difficult to administer.
Such concerns should evaporate with a workable construction of when pre-charging rights attach. In this Part, we propose such a construction, suggesting that CVRA rights should attach when substantial evidence exists that a specific person has been directly and proximately harmed as the result of a federal crime. This approach appears to be already be the method that the Department is taking, as [*91] it has extended many rights to victims before the formal filing of criminal charges as a matter of internal policy. 182 This approach appears to be workable, as a number of states extend rights to victims during the investigative process. 183

A. A TEST FOR DETERMINING WHEN RIGHTS ATTACH

As explained in the earlier Parts of this Article, the CVRA clearly envisions that crime victims would have rights in the criminal justice process before the return of indictments or the filing of criminal complaints. The question then as to how much earlier in the process crime victims have rights naturally arises. Does the CVRA apply one second after a federal crime has been committed? Or does it apply at some later point during an investigation?

This issue was nicely framed by the U.S. District Court for the Eastern District of New York in a securities fraud case. In the first indictment underlying the case, the charged crime did not include various victims. A later superseding indictment broadened the charges to include those missing individuals. When they brought a suit under the CVRA, the court noted that "quite understandably, movants perceive their victimization as having begun long before the government got around to filing the superseding indictment." 184 The court, however, explained that there must be "logical limits" to crime victims' rights before the filing of charges. 185 The court noted:

For example, the realm of cases in which the CVRA might apply despite no prosecution being "underway,' cannot be read to include the victims of uncharged crimes that the government has not even contemplated. It is impossible to expect the government, much less a court, to notify crime victims of their rights if the government has not verified to at least an elementary degree that a crime has actually taken place, given that a corresponding investigation is at a nascent or theoretical stage. 186

The logical limits that the CVRA envisions could come from how the Justice Department interacts with criminals during the investigation of a crime. Crime victims' rights advocates are fond of saying that victims "only want to be treated like criminals" - that is, they simply want to have the same kinds of rights as criminals receive, such as the right to be notified [*92] of court hearings and to attend those hearings. 187 So it is instructive to notice that the Justice Department policy is to extend certain rights to suspected criminals during certain points in the investigative process. That policy might provide guidance on when crime victims' rights would attach.

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181 Kyl et al., supra note 19, at 594.
182 See, e.g., Attorney General Guidelines, supra note 52, at 41-42 (discussing the right to confer regarding plea bargains).
183 See infra Part III.D.
184 United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N.Y. 2008).
185 Id.
186 Id.
187 See, e.g., Cassell, supra note 15, at 1376-85 (describing the rationale underpinning state victims' rights statutes).

DAVID SCHOEN
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