Critique of Advisory Committee Proposal Limiting Crime Victims' Rights to Address Disclosure and Face‑to‑Face Meetings

Page 26 of 78 2007 Utah L. Rev. 861, *897 This may be a convenient place to highlight another defect in the Advisory Committee's proposal - crime victims have no right to be heard on whether their address should be given to the defendant. As discussed shortly, 7°4 I had originally proposed allowing victims to be heard "on any matter directly affecting a victim's right" - for example, whether disclosing a victim's home address violates the victim's right to reasonable protection. The Advisory Committee waters down that proposal, recommending only that the victim must "be reasonably heard at any public proceeding in the district court concerning release, plea, or sentencing involving the crime." ?°5 Under the Advisory Committee's formulation, therefore, crime victims would seem to have no right to be heard on disclosure of their address. This is not a matter concerning "release, plea, or sentencing" and, in many cases, this issue will be decided by written pleadings rather than in a "public proceeding.” Nothing better illustrates the unfairness of the Advisory Committee's proposals and their illegality under the CVRA than its refusal to guarantee that crime victims will be heard on the subject of whether their home address will be turned over to the defendants accused of victimizing them. Compounding all these problems is one more: The Advisory Committee appears to encourage the use of crime victim depositions or other face-to-face meetings between victims and defendants. In its proposed note to the amended rule, the Advisory Committee describes as one possible procedure for dealing with a defense request for a victim's home address that "the court might authorize the defendant and his counsel to meet with the victim in a manner and place designated by the court, rather than giving the defendant the name and address of victim." 7° This note raises a host of problems. Most importantly, a federal court lacks jurisdiction to require a crime victim to appear at a face-to-face, pretrial [*898] meeting with the defendant. n 207 The "federal courts are courts of limited jurisdiction, and federal judges have no general power to compel private citizens to meet with defendants before a trial. 2°° Moreover, the Advisory Committee seems to envision that such orders could issue without the victim even being heard on the subject, a deprivation of liberty without due process of law. 7°? Even if the court had authority and had considered a victim's arguments, a face-to-face meeting with the defendant raises other problems. Such a meeting is a deposition in all but name. Yet Rule 15 provides stringent limits on the circumstances in which a defendant can depose a victim. In particular, any deposition is limited to "exceptional circumstances" and a deposition for discovery purposes is not permitted. *!° The Advisory Committee Note suggesting a meeting between a victim and a defendant does an end run around these limitations. *!! In light of all these concerns, the best approach is simply to strike the existing requirement that a victim's address and phone number be turned over as part of an alibi defense, as I proposed. It should also be noted that this proposal raises no due process concerns that might stem from a one-sided reciprocal discovery rule. My proposal applies even handedly to both prosecution and the defense. Neither side is required to disclose the address or telephone number of a victim, thus complying with the Supreme Court's instruction that "in the absence of a strong showing of state interests to the contrary, discovery must be a two- 204 See infra notes 528-539 and accompanying text (discussing proposed Rule 60(a)(3)). 205 Proposed Amendments, supra note 71, R. 60, at 16. 206 Td. at 6. 207 Rasul v. Bush, 542 U.S. 466, 490 (2004) (quoting Kokkenen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). 208 See, e.g., State ex rel. Beach v. Norblad, 781 P.2d 349, 350 (Or. 1989) (reversing trial court order requiring crime victim to allow defense counsel to examine her home for evidence; victim "is under no obligation to obey an order that the defendant trial judge lacked authority to issue"); State v. Gabrielson, 464 N.W.2d 434, 438 (lowa 1990) (finding no constitutional, statutory, or other authority for trial court to order a psychiatric examination of a sexual abuse victim). 209 See U.S. Const. amend. XIV. 210 2 Charles Alan Wright, Federal Practice and Procedure (Criminal) § 241, at 11 (2000 & Supp. 2006); see, e.g., In re United States, 878 F.2d 153, 157 (5th Cir. 1989). 211 Apparently in response to my arguments here, the Advisory Committee Note has been amended. See infra Afterword. DAVID SCHOEN HOUSE_OVERSIGHT_017661