Advisory Committee Proposal May Strip Victims of Forum to Challenge DOJ Investigative Misconduct Pre‑Prosecution

Page 71 of 78 2007 Utah L. Rev. 861, *960 This resulted in the Advisory Committee proposing a rule that recites only half of the CVRA's venue provision. The rule as proposed by the Advisory Committee provides that "the rights described in [the rules] must be asserted in [*961] the district in which a defendant is being prosecuted for the crime," >°? leaving silent what a victim should do if no prosecution is underway. Once again, the confusion that the Advisory Committee discovered in the statute stems from the committee's failure to give effect to (among other things) the victim's right to fairness. The CVRA extends the requirement for fair treatment not only to prosecutors and courts, but also to all "officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime ... .". °° (I will call this the CVRA's "coverage provision.") It is, of course, easily conceivable that investigative agencies might violate a victim's right to fairness before formal criminal proceedings were initiated. Because "no prosecution is underway" in such circumstances, the victim would need to assert their rights (in the language of the CVRA's venue provision) "in the district court in the district in which the crime occurred." Under the Advisory Committee's proposal, a victim who is treated unfairly by a federal investigative agency will lack any place to assert her right to fair treatment - in contravention of a teaching that traces back at least to Marbury v. Madison that "where there is a legal right, there is also a legal remedy." >*4 The Advisory Committee, however, seems to think that this is not a problem to be addressed in the Rules because the rights covered by the criminal rules "could only be asserted with respect to a case being prosecuted." But, of course, this assumption depends on limiting the rights in the CVRA to such narrow provisions as the right to be "heard" on sentencing and other issues, because these rights attach only to "any public proceeding." >>> This assumption fails if the right to be treated fairly (not to mention the right to be treated with dignity and respect and other rights) is in the mix - as CVRA's plain language demands. The Advisory Committee seemed to recognize the venue problem for cases with no prosecution underway when it discussed. the fact that victims may now have rights in the grand jury process (a subject squarely covered by the criminal rules >°°). But other examples exist as well. For example, federal agents may improperly tread on a victim's rights through a search warrant (another subject covered by the criminal rules °°’). Or in the course of their investigation, they may mishandle evidence in a way that treads on a victim's dignity (improperly disseminating a nude or pornographic photograph of a victim, for instance. 598) In [*962] all these situations, victims are at least entitled to a forum to assert their rights to be treated with fairness and with respect for their dignity and privacy - yet the Advisory Committee has excised the CVRA's venue provision that provides the forum. 5 a 2 Proposed Amendments, supra note 71, Rule 60(b)(4), at 17. 353 18 U.S.C. § 3771(c)(1) (emphasis added). 345 U.S. (I Cranch) 137, 163 (1803). 5 18 U.S.C. § 3771 (a)(4). 36 Fed. R. Crim. P. 6. See generally Beloof, Cassell & Twist, supra note 6, at 335-79 (discussing victims' rights and the grand jury process). 557 See Fed. R. Crim. P. 41. *8 Cf. Donohue v. Hoey, No. 02-1405, 2004 WL 2095661, at 22-24 (10th Cir. Sept. 21, 2004) (finding no § 1983 right to damages for alleged mishandling of nude photograph during state police investigation). The examples given in the text are just illustrations, and there may be many more situations where a victim's rights might be violated before charges are filed. In particular, the victim might not receive notice of their rights before charges are filed. The Justice Department's own guidelines provide that a victim must receive notice of rights "at the earliest opportunity after detection of a crime at which it may be done without interfering with an investigation." Dep't of Justice, Attorney General Guidelines, supra note 161, at 23. Moreover, existing federal law requires the same notification, although this law is found outside the CVRA. See 42 U.S.C. § 10607 (notice to victim must be given at "the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation."). DAVID SCHOEN HOUSE_OVERSIGHT_017706