Proposed Rule Expanding Victims' Rights to Be Heard in Criminal Proceedings

Page 68 of 78 2007 Utah L. Rev. 861, *956 Part of the confusion here may stem from two different ways in which victims can be heard. The first way is when the victim's statement is effectively built into the proceeding at issue. At sentencing hearings, for example, the CVRA envisions a specific point in the process where the victim will have a chance to make a statement - the victim's allocution. >! This is what the CVRA means when it refers to the victim's "right to be heard" at sentencing proceedings (along with plea and bail proceedings). But the listing of victims’ rights to be heard at those three specific hearings could not possibly have meant that victims would have to remain silent at all other hearings. [*957] The CVRA envisions victims being heard in second sense - in arguing in favor of their rights. The CVRA directly gives victims and their representatives the right to "assert" their rights. *3* These rights can be asserted by a victim's representative (that is, an attorney). >*? The CVRA also allows victims to file motions asserting their rights which must be taken up "forthwith." °4 These are all ways in which victims can properly be heard. *3> The CVRA's legislative history makes it unmistakably clear that victims would be heard at other points in the process. Senator Feinstein explained that the basic goal of the CVRA was to give victims the right to "participate in the process where the information that victims and their families can provide may be material and relevant ... ."_>3° Senator Kyl also noted that the act's enforcement provisions would give victims rights to be heard throughout the process: [The CVRA's enforcement provisions] allow[] a crime victim to enter the criminal trial court during proceedings involving the crime against the victim, [to stand with other counsel in the well of the court,] and assert the rights provided by this bill. This provision ensures that crime victims have standing to be heard in trial courts so that they are heard at the very moment when their rights are at stake and this, in turn, forces the criminal justice system to be responsive to a victims' rights in a timely way. 537 As one illustration of how this right to be heard operates, consider the victim's right to proceedings free from unreasonable delay. 38 Presumably, this right encompasses a victim's opportunity to be heard before a case is delayed. As Senator Kyl stated: "This provision should be interpreted so that any decision to schedule, reschedule, or continue criminal cases should include victim input through the victim's assertion of the right to be free from unreasonable delay." *3? In view of all the different ways in which crime victims can be heard, it is appropriate to have a rule that speaks broadly to the subject and protects victims’ right to be heard whenever their rights are at stake. My proposed rule achieves that goal. [*958] (New) Rule 60(b) - Enforcement of Victims’ Rights The Proposals: I proposed folding into the procedures a victim's right to assert an error as follows: Rule 51. Preserving Claimed Error (a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary. 31 See supra notes 434-448 and accompanying text (discussing victim allocution). 582 18 ULS.C. § 3771(d)(1). 533 Td. 534 Td, § 3771(d)(3). 35 See, e.g., United States v. Tobin, No. 04-CR-216-01-SM, 2005 WL 1868682, at 2 (D.N.H. July 22, 2005) (allowing putative victim to assert right to proceedings free from unreasonable delay even though bail, plea, or sentencing hearing not at issue). 36 150 Cong. Rec. $4262 (Apr. 22, 2004) (statement of Sen. Feinstein). 37 150 Cong. Rec. $4269 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphases added). 338 18 U.S.C. § 3771 (a)(7). 39 150 Cong. Rec. $10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added) (reprinted in Appendix B). DAVID SCHOEN HOUSE_OVERSIGHT_017703