Proposed Federal Rule Changes to Allow Closed‑Circuit Broadcasts and Victim Participation in Sentencing for Petty Offenses

Page 51 of 52 2005 B.Y.U.L. Rev. 835, #922 (b) Closed-Circuit Transmission for Victims. In order to permit victims of crime to watch criminal trial proceedings, the court may authorize closed-circuit televising of the proceedings for viewing by victims or other persons the court determines have a compelling interest in doing so. The Rationale: The CVRA grants victims the right to attend trials, as noted previously in connection with proposed Rule 43.1. 74° At the same time, however, the CVRA recognizes that in situations with numerous victims, the court may have to craft "a reasonable procedure" to protect victims’ rights. 34! One such reasonable procedure would appear to be closed-circuit transmission of court proceedings to a facility sufficiently large to accommodate all the victims. This was the procedure followed in the Oklahoma City bombing case. *47 [*923] The proposed rule would authorize such transmission in appropriate cases. The language for the proposed rule comes from 42 U.S.C. /0608(a), which authorizes closed-circuit transmissions "notwithstanding any provision of the Federal Rules of Criminal Procedure to the contrary" in cases in which a proceeding has been transferred more than 350 miles - as was the case with the Oklahoma City bombing trial. In light of the CVRA's mandate that the court must always craft "a reasonable procedure" to protect the rights of multiple victims, there is no compelling reason to tie the device to such geographical circumstances. The proposed rule authorizes courts to allow such transmissions in any appropriate case. Rule 58 - Victims and Petty Offenses The Proposal: Courts should hear from victims regarding sentences in petty cases as follows: Rule 58. Petty Offenses and Other Misdemeanors. (3) Sentencing. The court must give the defendant an opportunity to be heard in mitigation and then proceed immediately to sentencing. The court must also give victims an opportunity to be heard. The court may, however, postpone sentencing to allow the probation service to investigate or to permit either party to submit additional information. The Rationale: The CVRA gives a "victim" the right to be heard at sentencing. The CVRA defines "victim" as including anyone who is directly and proximately harmed by "a Federal offense." *47 The Act does not limit those offenses to felonies or misdemeanors. Accordingly, a victim has a right to be heard at sentencing for any petty offense, as would be reflected in the proposed rule. [*924] Conclusion The CVRA commands that victims be made participants in the federal criminal process and thus requires significant changes to the Federal Rules of Criminal Procedure. This Article has provided one possible and comprehensive way to implement that congressional command with specific language and supporting analysis for each change. Undoubtedly there are other ways of 340 See supra notes 277-308 and accompanying text. 341 18 USCA. 3771(d)(2). 342 See Paul G. Cassell & Robert F. Hoyt, The Tale of Victims’ Rights, Legal Times, Dec. 23, 1996, at 32; Jo Thomas, Trial to Be Shown in Oklahoma for Victims, N.Y. Times, Jan. 30, 1997, at A14. 343 18 U.S.C.A. 3771 (e). DAVID SCHOEN HOUSE_OVERSIGHT_017765