Proposed Rule Grants Victims Right Against Unreasonable Delay in Criminal Proceedings

Page 49 of 52 2005 B.Y.U.L. Rev. 835, *919 (c) Victim's Right Against Delay. The court shall assure that a victim's right to proceedings free from unreasonable delay is protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to continue over the objection of a victim, the court shall state its reasons in the record. The Rationale: Under the CVRA, a victim has a right "to proceedings free from unreasonable delay." 73! A number of states have similar 332 provisions. [*920] The proposed rule would give effect to this right. Of course, in some situations, delay is reasonable. In others, however, the court should deny a motion to continue in order to wrap up the proceedings and possibly bring closure to a victim. As Senator Feinstein has explained, This provision does not curtail the government's need for reasonable time to organize and prosecute its case. Nor is the provision intended to infringe on the defendant's due process right to prepare a defense. Too often, however, delays in criminal proceedings occur for the mere convenience of the parties and those delays reach beyond the time needed for defendant's due process or the government's need to prepare. The result of such delays is that victims cannot begin to put the crime behind them and they continue to be victimized. It is not right to hold crime victims under the stress and pressure of future court proceedings merely because it is convenient for the parties or the court. 373 The proposed rule gives victims a right against unreasonable delay in subsection (c). To ensure that defendants’ rights are reasonably protected, a new subsection (b) is added recognizing defendants’ rights in the Speedy Trial Act. *34 The existing rule's direction to give scheduling preference to criminal cases would remain in subsection (a). The proposal also gives victims the right to be heard on any continuance. This is consistent with the drafters’ intent, as at least one court has already opined. 77° As Senator Kyl stated, "This provision [in the CVRA] should be interpreted so that any 331 18 U.S.C.A. 3771(a)(7). Even before the adoption of the CVRA, child victims had the right to a "speedy trial” in certain situations. /8 U.S.C. 3509(j). 332 See, e.g., Ariz. Rev. Stat. 13-4435 (2001) ("In any criminal proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a speedy trial."); Ca/. Penal Code 1050(a) (2005) (stating policy of the California legislation that "excessive continuances ... cause substantial hardship to victims and other witnesses ... . It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition ... ."); Del. Code Ann. tit. 1], 9423 (2001) ("In ruling on any motion or other request for a delay or continuance ... the court shall consider and give weight to any adverse impact such delay or continuance might have on the well-being of any victim ... ."); 730 JI]. Comp. Stat. Ann. 5/5-4-3.](c) (West 2005) ("Victim shall be notified of the date and time of hearing [on any motion for continuance] and shall be provided an opportunity to address the court on the impact the continuance may have on the victim's well-being."); La. Rev. Stat. Ann. 46:1844 (1999) ("When ruling on a defense motion for continuance, the court shall consider the impact on the victim."); Miss. Code Ann. 99-43-19 (2000) ("The court ... should make every reasonable effort to consider whether granting [a] continuance shall be prejudicial to the victim."); Ri. Gen. Laws 1]-37-11.2 (2000) ("The court shall consider any adverse impact the delay or continuance may have on the well-being of the victim ... ."); Tenn. Code 40-38-116(a) (2003) ("In any criminal proceeding in which a continuance is requested, the court shall consider the victim's views and the victim's right to a speedy trial. If the continuance is granted over the victim's objection, the court shall state on the record the reason for the continuance and the procedures that have been taken to avoid further delays."); vo. Stat. Ann. 1-40-207 (2004) ("The court shall consider the victim's interest and circumstances when ... granting or denying continuances."). Some states limit speedy trial rights to child victims. See, e.g., Ala. Code 15-25-6 (2000) ("In ruling on any motion ... for ... continuance ... the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness."); Del. Code Ann. tit. 1], 5133 (2001) (same); Idaho Code Ann. 19-110 (2004) (same); Ky. Rev. Stat Ann. 421.510 (LexisNexis 1992) (same); N.Y. Penal Law 642-a (2005) (same); N.D. Cent. Code 12.1-35-05 (2003) (same); Wis. Stat. 971.105 (2005) (same). For general review of the victim's right to a speedy trial, see generally Beloof, Cassell & Twist, supra note 15, at 383-91; Cassell, Balancing the Scales of Justice, supra note 15, at 1406. 333 150 Cong. Rec. S4268-69 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). DAVID SCHOEN HOUSE_OVERSIGHT_017763