Analysis of Federal Rule 32(d)(2)(B) Omits Victim Terminology and Imposes Unequal Reporting Requirements

Page 3 of 52 2005 B.Y.U.L. Rev. 835, #839 information is subpoenaed from third parties - such as schools or medical providers - even though victims have compelling privacy interests to protect. ® And the rules do not protect the victim's right to attend trials, despite [*840] victims' long history of having at least some protected interest in observing trials and other proceedings. ? One provision conveniently encapsulates the surprising absence of victims from the rules: Rule 32(d)(2)(B). The drafters of this rule '° appear to have been so afraid to utter the word "victim" that they did not use the term even when describing the person harmed by a crime. Rule 32(d)(2)(B) directs that a presentence report contain "verified information, stated in a nonargumentative style, that assesses the financial, social, psychological, and medical impact on any individual against whom the offense has been committed". !! The phrasing of this provision is striking for several reasons. It eschews the straightforward term "victim," preferring instead the obscuring phrase “individual against whom the offense has been committed." The provision also uses the responsibility-obscuring passive voice in describing the individual "against whom" the offense has been committed, leaving the reader to wonder who might have committed that offense (the defendant, perhaps?). Interestingly, the provision requires that information about the victim be "verified." Fair enough - until one realizes that the directly adjacent provision regarding information about the defendant lacks a similar verification requirement. !* Why would information about the victim need to be verified while information about the defendant would not? Finally, the provision requires that victim information be stated in a "nonargumentative" style. Again, the adjacent defendant's provision contains no such direction. !3 In short, even a rule that seemingly must mention victims - the rule dictating preparation of a presentence report describing the crime - manages to avoid mentioning the word. B. The Victims' Rights Movement That victims are missing from the Federal Rules of Criminal Procedure exemplifies their treatment in the modern American [*841] criminal justice system. As one commentator has described the situation, the victim is "seen at best as "the forgotten man! of the system and, at worst, as being twice victimized, the second time by the very system to which he has turned for justice." '4 The absence of victims conflicts with "a public sense of justice keen enough that it has found voice in a nationwide victims’ rights movement." !° The crime victims’ rights movement developed in the 1970s because of a perceived imbalance in the criminal justice system. Led by feminist and civil rights activists, victims’ advocates argued that the criminal justice system had become preoccupied 8 See Fed. R. Crim. P. 17; discussion infra notes 177-91, and accompanying text. ° See Fed. R. Crim. P. 43; discussion infra notes 269-300 and accompanying text. ® To be clear, Congress, not the Advisory Committee on Criminal Law and Procedure, drafted the language of this rule. See Victims of Crime Act of 1984, Pub. L. No. 98-473, 98 Stat. 2014 (1984) (directly amending Rule 32). ! Fed. R. Crim. P.32(d)(2)(B) (emphasis added). 2 Td. at 32(d)(2)(A). 3 Td. * William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L. Rev. 649, 650 (1976). 5 Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (internal quotation marks omitted). See generally Douglas Evan Beloof, Paul G. Cassell & Steve J. Twist, Victims in Criminal Procedure 29-37 (2005); Shirley S. Abrahamson, Redefining Roles: The Victims' Rights Movement, 1985 Utah L. Rev. 517; Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, /999 Utah LE. Rev. 289 [hereinafter Beloof, The Third Model of Criminal Process]; Paul G. Cassell, Balancing the Scales of Justice, 1994 Utah E. Rev. 1373, 1380-82; Abraham S. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 Miss. L.J. 514 (1982); Erin Ana O'Hara, Victim Participation in the Criminal Process, /3 J.L. & Pol'y 229 (2005); William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 Stan. J. Int'l L. 37 (1996). DAVID SCHOEN HOUSE_OVERSIGHT_017717