Text extracted via OCR from the original document. May contain errors from the scanning process.
88 CASSELL ET AL. [Vol. 104
crime victims to assert CVRA rights “in the district court in which a
defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in the district in which the crime
occurred.”'® The Department contends that this language refers quite
narrowly to the “period of time between the filing of a complaint and the
initiation of formal charges.”'®° In support of its position, the Department
cites a Fourth Circuit case interpreting the Sixth Amendment right to
counsel, which held that a “prosecution” for purposes of that Amendment
does not begin when a criminal complaint is filed.'!°? In OLC’s view, the
venue provision’s direction that victims should assert nghts when “no
prosecution is underway” applies only to the limited time between when the
Government files a complaint against a defendant and some later point
when the “prosecution” actually begins. OLC notes that the filing of a
complaint triggers an initial appearance, where crime victims can have
important interests at stake, such as the right to be heard about a
defendant’s release on bail. OLC believes it is only to such post-complaint,
yet pre-indictment, proceedings (i.c., the initial appearance) that the venue
provision’s “no-prosecution-underway” language covers.
As a preliminary matter, OLC’s interpretation of the word
“prosecution” in the Department’s narrow construction of the venue
provision is a twisted one, at odds with the way that term is conventionally
used. The filing of a complaint is typically viewed as the start of a criminal
prosecution. For example, the leading criminal procedure hombook states
that “[wlith the filing of the complaint, the arrestee officially becomes a
‘defendant’ in a criminal prosecution."
Moreover, having specifically rejected the filing of the criminal
complaint as the starting point for a “prosecution” within the CVRA’s
venue provision, OLC refuses to consider the implications of its alterative
starting point: the formal filing of an indictment. OLC states that “a
prosecution of a felony must commence with the retum of an indictment by
a grand jury,” citing the Federal Rules of Criminal Procedure.’ Yet OLC
does not pause to recognize that, while felonies proceed by way of
indictment, misdemeanors can proceed not only by indictment but also by
complaint.'” The CVRA draws no distinction between misdemeanor and
65 OLC CVRA Rights Memo, supra note 2, at 14 (quoting 18 U.S.C. § 3771(d\(3) (2012)).
°° Id.
67 Td. (citing United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006)).
68 Wayne R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.2(g), at 11 (Sth ed. 2009)
(emphasis added).
© OLC CVRA Rights Memo, supra note 2, at 14 (citing Fep. R. Crm™. P. 7(a)(1)).
10 Fep. R. Crim. P. 58(b)(1) (“The trial of a misdemeanor may proceed on an
indictment, information, or complaint.” (emphasis added)).
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