Critique of Advisory Committee's Selective Application of Crime Victims' Rights Act in Federal Criminal Rules

Page 12 of 78 2007 Utah L. Rev. 861, *877 witnesses, but also the victim as well. ?° Notably, the Advisory Committee's rationale for this change was to "implement[] the victim's "right to be treated with fairness’ under the Crime Victims' Rights Act." °?’ But if a change to the relatively obscure Rule 18 is appropriate in light of the victim's right to fairness, why aren't changes to many other, more significant rules also appropriate? Further highlighting the inconsistent treatment of the right to fairness is the way the Advisory Committee handled parallel provisions in the CVRA. In a single clause, the CVRA gives victims the right to be treated not only with fairness, but also with dignity and respect: section (a)(8) of the CVRA provides that victims shall enjoy "the right to be treated with fairness and with respect for the victim's dignity and privacy." °* The Advisory Committee used victims' rights to dignity and respect as a "springboard" in several places. For example, the Advisory Committee proposed an amendment to prevent inappropriate subpoenas for personal or confidential formation about a victim, explaining that "this amendment implements the Crime Victims Rights Act, codified at /S U.S.C. § 377](a)(8), which states that victims have a right to respect for their "dignity and privacy." °° Similarly, the Advisory Committee proposed an amendment to prevent the inappropriate release of a victim's address and telephone number as part of alibi defense disclosures, explaining that "this amendment implements the victims’ rights under the Crime Victims Rights Act ... to be treated with respect for the [*878] victim's dignity and privacy." !°° Why the Advisory Committee believed it appropriate to try to implement the "dignity and privacy" provisions of the CVRA but not the immediately adjacent "fairness" provision is unclear. C. The Advisory Committee Should Not Leave the CVRA's Interpretation to the Litigation Process. The Advisory Committee also justified its decision not to review the Rules for fairness on the ground that it would "not attempt to use the rules to anticipate and resolve the interpretative questions that will arise" under the CVRA. !°! Yet a basic purpose - perhaps the basic purpose - behind the procedural rules is to lay out answers to questions that might otherwise have to be litigated. To that end, Rule 2 of the criminal rules provides that "these rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay." !° It is at odds with securing simplicity in procedure to simply regurgitate the language of the CVRA in the criminal rules, leaving every interpretative question to the vagaries of litigation. Historical examples are legion of the Advisory Committee amending the Federal Rules of Criminal Procedure precisely to resolve questions that were being (or might have been) litigated. To provide a few straightforward examples, in 1979 the Advisory Committee amended and clarified the standards for presentence withdrawal of a guilty plea. The Advisory Committee noted that courts had "critically stated that the Rule offers little guidance as to the applicable standard for a presentence withdrawal of plea and that as a result the contours of [the presentence] standard [in the rule] are not easily defined." 1°? The amendment clarified language "which has been a cause of unnecessary confusion." 04 % See Advisory Committee Report, supra note 69, at 8 (adopting proposal from Cassell, Proposed Amendments, supra, note 4, at 878-79). 7 Td. at 4; accord CVRA Subcommittee Memo, supra note 66, at 8. 8 18 USC. § 3771 (a)(8). 9 Advisory Committee Report, supra note 69, at 3 (note to Proposed Rule 17(c)(3)). 80 Td. at 351. °l CVRA Subcommittee Memo, supra note 66, at 2. 02 Fed. R. Crim. P. 2. 63 Fed. R. Crim. P. 32 advisory committee's note (1979 Amend. to Rule 32(d)) (internal quotation marks omitted). 4 Td. DAVID SCHOEN HOUSE_OVERSIGHT_017647