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2007 Utah L. Rev. 861, *923

The Advisory Committee recommended no change to this rule. 367

Discussion:

The Advisory Committee rejected this change because, in its view, the fact that the CVRA did not specifically address transfer decisions precluded any amendment:
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Judge Cassell grounds his proposal on the general provision of the CVRA that gives a victim a right to be treated with "fairness." 18 U.S.C. § 3771(a)(8). The Subcommittee was not persuaded that this general language warranted an amendment that would require the court to consider the victim's views. In the case of transfers for prejudice, the preferences of the victim could not weigh the defendant's right to a fair proceeding. In the case of transfers for convenience, the statutory right to confer with the attorney for the government provides the mechanism for incorporating the victim's views. As in the case of Rule 20, the Subcommittee declined to go beyond the carefully crafted limitations of the statute. In appropriate cases, the attorney for the government should appraise the court of the victim's views. 368

Once again, the Advisory Committee's position clashes with the statute. The Committee does not argue (nor does it seem plausible to argue) that transferring a case to a distant location without even considering the victim's view treats the victim fairly. Instead, the Committee ducks the implications of the right to fairness because it is "general language," as though a "general" command from Congress can be ignored.

Perhaps recognizing the weakness of its position, the Advisory Committee goes on to craft a policy argument against victims being heard. It divides transfer cases into two types - those for convenience and those for prejudice - and concludes that victims should not enjoy a guaranteed right to be heard in either situation. In neither case is the analysis convincing.

With regard to transfers for convenience, the Committee contends that the victim's right to confer with prosecutors is sufficient protection. But a victim's conference with those very same government authorities who find it convenient to move the case hardly will give victims much comfort - much less the right to fairness that Congress has mandated. The Committee also is less than clear when it directs prosecutors to advise the court of the victim's objections "in appropriate cases." It is hard to think of any case when a prosecutor would be justified in concealing an unrepresented victim's concerns from the court. 369 It is far simpler - and, more to the point, simply fair - to ensure that the court will always consider a victim's views on transfer.

With regard to transfers to avoid prejudice, the Advisory Committee concludes that a victim's views could not "outweigh" the defendant's right to a fair proceeding. But no one argues that victims' views will necessarily outweigh a defendant's argument; the limited point is simply that victims' views should be considered in the balance. Moreover, a victim may be able to demonstrate that a defendant's argument is unsupported or that other, less burdensome alternatives to [*925] transferring a case exist. Surely these are sufficiently important reasons to let a victim be heard before a case is moved.

The Advisory Committee also appears to overlook the constitutional grounding that a victim's opposition to a transfer decision enjoys. In contrast to the Sixth Amendment, which gives defendants in a state prosecution a right to trial in their home state, 370 Article III simply commands that in a federal prosecution, "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes have been committed." 371 This Article III vicinage right was designed to protect not only the rights of the defendant but also the rights of the community - including victims in the

367 Proposed Amendments, supra note 71.

368 CVRA Subcommittee Memo, supra note 66, at 17-18.

369 In the case of a represented victim, the prosecutor could reasonably rely on the victim's counsel to present appropriate arguments.

370 U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ." (emphasis added)).

371 U.S. Const. art. III, § 2 (emphasis added).

DAVID SCHOEN

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