Proposed Amendments to Federal Rules to Require Victim Input on Case Transfers

Page 26 of 52 2005 B.Y.U.L. Rev. 835, *879 This change helps to implement a victim's right under the CVRA to be treated "with fairness." 19° The rule change is modest. Rule 18 already requires the court to consider the convenience of the "witnesses" in a case. In many cases, of course, the victim will be a witness. But for clarity in those cases, and to account for cases in which the victim will not be a witness, the rule should be amended to refer specifically to victims. Rule 20 - Victims’ Views Considered Regarding Consensual Transfer The Proposal: Rule 20 should be amended to allow the court to consider the victims' views in any decision to transfer a case as follows: (a) Consent to Transfer. A prosecution may be transferred from the district where the indictment or information is pending, or from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present if: (1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive trial in the district where the indictment, information, or complaint is pending, consents in writing to the court's disposing of the case in the transferee district, and files the statement in the transferee district; and (2) the United States attorneys in both districts approve the transfer in writing after consultation with any victim. If any victim objects to the transfer, the United States attorney in the transferring district or the victim's attorney shall advise the court where the indictment or information is pending of the victim's concerns. A similar change should be made to Rule 20(d) regarding transfer of juvenile proceedings. [*880] The Rationale: As with the previous proposal, this change implements the victim's right under the CVRA to be "treated with fairness." 197 The procedure for transferring a case for a plea is not constitutionally required, but rather is designed for the convenience of the defendant and the government. !°8 In considering whether such administrative reasons justify a transfer, the concerns of the victim appropriately enter into the balance. For reasons similar to those discussed above in connection with changes regarding plea procedures, the prosecution would be directed to confer with the victim and to advise the court of any objection to the transfer. 199 Rule 21 - Victims’ Views Considered Regarding Transfer for Prejudice The Proposal: Rule 21 should be amended as follows to require consideration of the victim's interest in whether a case should be transferred: (ec) Victims! Views. The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court shall consider the views of the victim in making any transfer decision. The Rationale: Rule 21 authorizes the trial judge to transfer a case to avoid prejudice or for the convenience of the parties. The proposed rule would require that the court consider the victim's concerns in making any such transfer decision. Such consideration would seem to be part and parcel of protecting the victim's right to be "treated with fairness." In addition, the vicinage provision of 196 18 U.S.C.A. 3771(a)(8) (West 2004 & Supp. 2005). 197 Td. 3771 (a)(8). 198 See generally Wright, Federal Practice and Procedure 321, at 357-58. 199 See supra notes 158-174 and accompanying text. DAVID SCHOEN HOUSE_OVERSIGHT_017740