Proposed Rule Amendments to Victim Rights under the CVRA

Page 44 of 52 2005 B.Y.U.L. Rev. 835, *910 forbid retrial even when a victim has received no notice, *°° and the CVRA itself bars a new trial remedy. *?? Sentencings would appear to be subject to limitations that might prevent a crime victim from obtaining a resentencing *°° - although the CVRA directly allows for re-sentencings in certain limited circumstances. 3°! While neither trial nor sentencing could proceed without proper notice to the victim, this restriction will affect only a small number of cases for a short period of time. Many federal cases lack a specifically identifiable victim (e.g., drug and immigration offenses) and thus are not covered by the CVRA. In those cases with a victim, a significant percentage of victims may waive any right to receive notice. In cases where victims choose to receive notice, presumably the notice will be properly given the vast majority of the time. Even apart from notice requirements, most victims will be trial witnesses and therefore will have been notified of the trial by a subpoena. Victims will also often be aware of sentencings through the work of probation officers in preparing presentence reports. 302 Th the tiny fraction of cases where notice has not been properly provided, notice will often be only a [*911] telephone call away. While the burdens of delaying a trial or sentencing are not trivial, Congress has determined that the victim's rights must take precedence. Proposed subsection (b) faithfully implements that determination. Subsection (c) of the proposed rule deals with the victim's right to attend in situations involving multiple victims. Congress has recognized that in some cases, such as the Oklahoma City bombing case, it is impossible to afford all victims the opportunity to attend trials. Accordingly, the CVRA provides that where "the number of crime victims makes it impracticable" to protect rights for all victims, the court "shall fashion a reasonable procedure" to give effect to victims' interests. 3° Possible procedures include closed-circuit transmission of the proceedings to a ceremonial courtroom, auditorium, or other facility that can accommodate many people. To permit such transmission, an amendment to Rule 53 is proposed below. 3 Subsection (d) gives victims a general right to be heard on issues "directly affecting" their rights. The CVRA specifically mandates that victims have the right to be heard with regard to release of the defendant, a plea, or a sentence. 3°° The right to be heard at these hearings has been addressed elsewhere in these proposed rules, °° but courts will sometimes consider other issues that directly affect victims' rights. For example, courts may consider whether to release the address and telephone number of the victim to the defendant. 3°7 It makes little sense for the court to decide this issue without hearing from the victim, particularly since the CVRA gives victims the right "to be reasonably protected from the accused." 3°8 Subsection (d) 298 See U.S. Const. amend. V. See generally Beloof, The Third Wave of Crime Victims' Rights, supra note 16, at 303-04 (discussing double jeopardy barriers to remedying violations of victim's rights). 299 18 U.S.C.A. 3771(d)(5). 300 See Fed. R. Crim. P. 35(c) (correction of sentence allowed only for technical or other clear error). Whether denial of a victim's right constitutes "clear error" subject to correction presumably will need to be resolved in future cases. Cf. United States v. Bedonie, 413 F.3d 1126 (10th Cir. 2005) (remedying error in restitution award not permitted after imposition of sentence). 301-18 U.S.C.A. 3771(d)(5) (authorizing a victim motion to "re-open a ... sentence" if the victim's right to be heard was denied); see 150 Cong. Rec. $10,910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) (discussing this provision). In light of these provisions, the Advisory Committee may need to consider redrafting Rule 35 to allow reopening of sentences imposed in violation of victims' rights. 302 See supra notes 231-34 and accompanying text (discussing probation officers collecting victim information for presentence reports). 303 18 U.S.C.A. 3771(d)(2). 304 See infra notes 340-42 and accompanying text. 305 18 U.S.C.A. 3771(a)(4) (discussed at supra notes 104, 230 and accompanying text). 306 See supra note 296 and accompanying text (bail hearings); supra note 110 and accompanying text (plea hearings); supra note 275 and accompanying text (sentencing hearings). 307 See supra notes 175-76 and accompanying text (discussing changes to Rule 12.1). 308 18 U.S.C.A. 3771 (a)(1). DAVID SCHOEN HOUSE_OVERSIGHT_017758