Proposal to Require Victim Input Before Waiving Jury Trials in Federal Courts

Page 47 of 78 2007 Utah L. Rev. 861, *926 ... . The [trial] court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim's family into account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that decision. 7°! Timmendequas demonstrates that victims can have legitimate interests in transfer decisions that can be accommodated without violating defendants' rights. Rule 21 ought to be amended to allow victims to provide that kind of information to the judge before any transfer decision is made. 3°? [*927] Rule 23 - Victims’ Views Considered Regarding Nonjury Trial The Proposals: I proposed that the court should be required to consider the views of victims before allowing waiver of a jury trial as follows: Rule 23. Jury or Nonjury Trial (a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves after considering the views of any victims. 3°? The Advisory Committee did not recommend any change to this rule. 344 Discussion: Here again, the Advisory Committee declined to adopt my recommendation because it goes "beyond the specific provisions of the CVRA, which do not address the issues whether the trial should be to the court or to a jury." 3° It is not necessary to repeat the arguments about the victim's right to fairness here, other than to note that the "preferred" trial method in the federal courts is a jury trial. 78° Why it is fair to deviate from that preferred method without first listening to the victims is not immediately clear. But, for the sake of argument, assume that nothing in the CVRA requires the Advisory Committee to change this rule. The fact remains that the Advisory Committee could still change the rule if there were good reasons to do so. In view of this fact, it is surprising that the Committee never defends the logic behind allowing a court to dispense with a jury trial without even hearing from a victim. To help protect the general public interest in trial by jury, Rule 23 currently requires not only prosecutor 381 Jd. at 76 (citations omitted). The hardship to the victim was established via affidavits from the victim's family provided to the court by the prosecutor. Id. 382 The Advisory Committee recently recommended a change to Rule 21(b) that does not address the points concerned in this Article. See infra notes 585-586 and accompanying text. 383 Cassell, Proposed Amendments, supra note 4, at 884. 384 Proposed Amendments, supra note 71. 385 CVRA Subcommittee Memo, supra note 66, at 18. 386 Singer v. United States, 380 U.S. 24, 35 (1965) ("Trial by jury has been established by the Constitution as the "normal and ... preferrable mode of disposing of issues of fact in criminal cases.) (alteration in original) (citation omitted). See generally Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 752 U. Pa. L. Rev. 33, 68 (2003). DAVID SCHOEN HOUSE_OVERSIGHT_017682