Advisory Committee’s Inconsistent Application of Victims’ Right to Fairness Under the CVRA

Page 11 of 78 2007 Utah L. Rev. 861, *876 history even once in a twenty-page subcommittee report, in four pages of minutes of its discussions, or in twenty-six pages of proposed amendments and accompanying Advisory Committee Notes. °° Perhaps the Advisory Committee took a different approach than the CVRA's drafters because it did not consider their stated intentions. If, on the other hand, the Advisory Committee was aware of the drafters’ intentions and declined to follow them, it is staking out a rather unusual path. It is standard practice for the Advisory Committee, no less than courts, to look to legislative history in crafting the Rules. 8? With respect to the CVRA in particular, many courts have found the CVRA's legislative history highly instructive. They have good reason for relying on the history. Unlike some contentious pieces of legislation where legislators possessed divergent views, the CVRA enjoyed a "broad, bi-partisan consensus." *° It passed by a vote of 393 to 14 in the House °! and by a voice vote in the Senate. ?? Moreover, the CVRA's cosponsors were bipartisan, and the views they gave on the legislation were not contradicted by anyone else. Thus, as the Ninth Circuit has explained in construing the CVRA to track Senator Kyl's and Feinstein's views: Floor statements by the sponsors of the legislation are given considerably more weight than floor statements by other members, and they are given even more weight where, as here, other legislators did not offer any contrary views. Silence, the maxim goes, connotes assent, and so we can draw from the fact that no one registered disagreement with Senators Kyl and Feinstein on this point the reasonable inference that the views they expressed reflected a consensus, at least in the Senate. 7? In light of all this, it is beyond doubt that crime victims have a substantive right to be treated with fairness (as well as with respect for their dignity and [*877] privacy) in the federal criminal justice process. Once that right is in mind, the Advisory Committee has clear duties under the Rules Enabling Act. That Act provides that the Rules "shall not abridge, enlarge or modify any substantive right." °4 Therefore, if any existing rule of criminal procedure "abridges" or even "modifies" a victim's rights to fairness, it is invalid and must be changed. Accordingly, the Advisory Committee must review all the Federal Rules of Criminal Procedure to ensure that they protect victims’ right to fairness. B. The Advisory Committee Treats the Right to Fairness Inconsistently The Advisory Committee claimed that to implement the right to fairness would use the right as "a springboard for a variety of victim rights not otherwise provided for in the CVRA." * If so, the Advisory Committee was unable to consistently follow its own view. The Advisory Committee agreed with my proposed change to Rule 18; that change required that when a court determines where within a judicial district to hold a trial, it should consider not only the convenience of the defendant and the 88 See Advisory Committee Report, supra note 69, at 1-20; Advisory Committee Minutes, supra note 68, at 13-16; Proposed Amendments, supra note 71, at 349-75. 8 See, e.g., Fed R. Crim. P. 15, Advisory Committee Note to 1974 Amendment (quoting directly from the Congressional Record statements from drafter of relevant legislation). % See United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006); see also 150 Cong. Rec. $10910 (daily ed. Oct. 9, 2005) (statement of Sen. Kyl) ("After extensive consultation with my colleagues, broad bipartisan consensus was reached and the language in [the CVRA] was agreed to."). °! 150 Cong. Rec. H8208-09 (daily ed. Oct. 6, 2004). °2 150 Cong. Rec. $10910 (daily ed. Oct. 9, 2004). % Kenna v. U.S. Dist. Court for the Cent. Dist. of Cal., 435 F.3d 1011, 1015-16 (9th Cir. 2006) (internal quotations and citations omitted); accord United States v. Sharp, 463 F.Supp.2d 556, 56] n.12 (E.D. Va. 2006); see also In re Kenna, 453 F.3d 1136, 1137 (9th Cir. 2006) (looking to legislative history to interpret CVRA); United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006) (same); United States v. Degenhardt, 405 F. Supp. 2d 1341, 1344 (D. Utah 2006) (same); United States v. Ingrassia, 2005 WE 2875220 (E.D.N_Y. 2005) (same). 94 28 U.S.C. § 2072(b) (2006). °° CVRA Subcommittee Memo, supra note 66, at 1. DAVID SCHOEN HOUSE_OVERSIGHT_017646