Proposed Rule Change Requires Prosecutors to Notify Victims and Consider Their Views on Plea Agreements

Page 19 of 52 2005 B.Y.U.L. Rev. 835, *867 provide the judge with as much information as possible. The court is under no obligation to accept a plea proposed by the 155 parties. '°4 After hearing from the victim about the plea, the court can determine what weight to give to the victim's views. To mplement the victim's right to be heard regarding a plea, the proposed rule change requires the court to directly address any victim present in court. This is consistent with the CVRA's legislative history that explains that "this provision is intended to allow crime victims to directly address the court in person." !°° The language of the proposed rule is lifted from an earlier paragraph in Rule 11, which requires the court to "address the defendant personally in open court" “before accepting a plea of guilty." '°7 Victims should be treated even-handedly. It may be important for the judge to address victims directly because many victims will lack the assistance of counsel. As novices in legal proceedings, victims may be uncertain about exactly when in the process they should present their views. By addressing victims, the court will eliminate that uncertainty and ensure that the victim's right to be heard is vindicated. [*868] Rule 11(c)(1) - Prosecution To Consider Victims' Views on Pleas The Proposal: The prosecution should be required to consider the victims' views in developing any proposed plea arrangement as follows: (1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. The attorney for the government shall make reasonable efforts to notify identified victims of, and consider the victims’ views about, any proposed plea negotiations. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will ... . The Rationale: The proposed change requires prosecutors to make reasonable efforts to notify victims about possible plea bargains and to consider the victim's views regarding those pleas. This requirement is taken essentially verbatim from the Attorney General Guidelines for Victim and Witness Assistance, which direct prosecutors to "make reasonable efforts to notify identified victims 153 See, e.g., Conn. Const. art. 1, 8 (giving victim right to be heard and to object to plea agreement); Mo. Const. art. 1, 32 (giving victim right to be heard at plea hearing); Utah Const. art. I, 28(1)(b) (giving victim the "right to be heard at important criminal justice hearings related to the victim"); Ala. Code 15-23-71 (2000) (giving victim right to be present at plea hearing and requiring prosecutor to confer with victim about plea); Ariz. Rev. Stat. 13-4423 (2001) (giving victim right to be present and heard at plea hearing and requiring prosecutor to confer with victim about plea); Afinn. Stat. Ann. 6114.03 (West 2003) (giving victim right to be heard at plea hearing); Miss. Code Ann. 99-43-33 (2000) (giving victim right to make statement at plea hearing); N.H. Rev. Stat. 2]-M:8-k (2000) (giving victim right to be heard at plea hearing); R.I. Stat. 12-28-4.1 (2000) (giving victim right to make statement at plea hearing). See generally Beloof, Cassell & Twist, supra note 15, at 476-94 (discussing victims and pleas); Sarah N. Welling, Victim Participation in Plea Bargains, 65 Wash. U. L.Q. 301 (1987). 154 See, e.g., United States v. Bean, 564 F.2d 700 (5th Cir. 1977). 155 But cf. George P. Fletcher, With Justice for Some: Victims' Rights in Criminal Trials 252, 257-58 (1995) (proposing that victims have a veto over any plea); Bennett L. Gershman, Crimes Against Victims: The Prosecutor's Duty of Neutrality, 9 Lewis & Clark L. Rev. (forthcoming 2005) (discussing situations in which victims have effectively been given a veto over pleas); Karen L. Kennard, Comment, The Victim's Veto: A Way To Increase Victim Impact on Criminal Case Dispositions, 77 Cal. L. Rev. 417, 437 (1989) (advocating that victims be given a veto over any plea). 156 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). 157 Bed. R. Crim. P. 11(b)(2). DAVID SCHOEN HOUSE_OVERSIGHT_017733