Integrating Crime Victims into the Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure constitute the "playbook" for the federal criminal justice system. But crime victims have been largely absent from the rules, even though they have an expanding number of rights in the process.

In this paper, which recently appeared in the Utah Law Review, I argue that it is time to fold crime victims into the federal rules. I develop a rule-by-rule analysis of changes that should be made, including: 1. Ensuring that crime victims' attorneys can appear in court (Rule 1); 2. Providing for victim participation in the plea bargain process (Rule 11); 3. Protecting victims' addresses and telephone numbers from improper disclosure (Rule 12); 4. Guaranteeing victims the right to attend criminal depositions (Rule 15); 5. Protecting victims from having personal and confidential information improperly subpoenaed (Rule 17); 6. Considering victims' interests when cases are transferred or when a bench trial is ordered (Rules 21 and 23); 7. Integrating victims into the sentencing process (Rule 32); 8. Articulating victims' right to discretionary appointment of counsel (Rule 44.1); 9. Giving victims the right to be heard at bail decisions (Rule 46); 10. Requiring victims' views be considered before a case is dismissed (Rule 48); 11. Protecting victims' right to a speedy trial (Rule 50); 12. Giving victims notice of court proceedings and of their rights in those proceedings (Rule 60(a)(1)); 13. Guaranteeing victims the right to attend court proceedings (Rule 60(a)(2)); 14. Guaranteeing victims the right to be heard on bail, plea, sentencing, and other issues important to victims (Rule 60(a)(3)).

I hope that the advisory committee that handles rule changes will seriously consider some of these proposals and move forward to make sure that crime victims' rights are protected in the federal criminal justice system.

Ryan Waxx (mail):
In this paper, which recently appeared in the Utah Law Review, I argue that it is time to fold crime victims into the federal rules.

Absolutely the heck not. Victims are far too involved with the proceedings already.

By definition they are a biased party, and one that has nothing constructive to add to the process. Yes, they can take the stand and talk about how horrible the crime was. And... ?

Justice is a matter between the criminal and the state. We don't need *two* parties to match up against the defendant's one, we already have enough trouble with fair trials with only the prosecutors on the other side.

Have you even considered the effect on prosecutors when they are forced to allow a victim's lawyers access to the process? Anything offered to the defendant in order to get him to cooperate or plead guilty will now be subject to media disclosure... prosecutors are already political animals and if you want an army of Nifongs this is exactly the way to go.

Even more importantly than the previous objections, allowing the lawyers for victims to be involved will create at least the perception (and probably the reality, to boot) that well-heeled victims get a different brand of justice than normal folk. Is that really the direction we need to be taking the justice system?
9.8.2008 8:45am
Mike& (mail):
The criminal law is supposed to be concerned with crimes against "the state." This is why prosecutors are allowed to tell juries that they represent "the people."

Are criminal acts really fairly characterized as injuries to the state in light of the victims' rights movement?

Whose injury is being vindicated in a criminal prosecution? If it's not the state's injury, fine. Let's return to the system of private prosecutions that they had in Rome.
9.8.2008 9:03am
Many of your propositions allow victim participation before guilt is determined and before it's been shown that they're in fact the victims of the accused. This seems to me to be jumping the gun.
9.8.2008 9:08am
Richard Aubrey (mail):
Strictly speaking, there is no crime until somebody gets convicted, no? Or, if you insist that being dead of gunshot wounds fired from twenty feet away is murder, we don't have a perp until the conviction.
It's 'way too early to have a vic involved in the process until, at least, sentencing.
Instead of having a vic involved in parole hearings, have a selection of parole board members' families hostage if the choice to parole goes sour.
9.8.2008 9:10am
The Ace:
Ok, now the real question. What happens if a judge inadvertently ignores the victim's rights that are guaranteed by statute or rule? Do you un-do what has already been done with respect to the criminal defendant? See Hoile v. State, 404 Md. 591 (2008)
9.8.2008 9:11am
Mike& (mail):
The abstract of your paper states: "It would be unfortunate if the Judiciary were to abdicate its responsibilities to protect crime victims and leave the task to another branch of government"

Are protecting alleged victims' rights really the responsibility of the Judiciary? Where in the Constitution is that located?
9.8.2008 9:17am
Ryan Waxx (mail):
Many of your propositions allow victim participation before guilt is determined and before it's been shown that they're in fact the victims of the accused. This seems to me to be jumping the gun.

In order to see the possible results of this approach, imagine Magnum having a victim's lawyer provided by Al Sharpton. Doesn't sound like such a great idea anymore, now does it?
9.8.2008 9:22am
sorry -:
but could you please point me to the constitutional provision recognizing/establishing these victims' "rights?"
9.8.2008 9:28am
Ryan Waxx (mail):
They're in the emanation of the penumbra, obviously!
9.8.2008 9:38am
Dave N (mail):
I agree that amending Rule 11 (allowing victims to be involved in plea bargaining) is a bad idea. I also want more information as to what role a victim's attorney actually would have. If it is a surrogate's right to notification, fine. If it is a right to be an active participant in the proceedings, I am much more skeptical.

However, the other suggestions seem more benign--though I want some more information as to what these particular changes would entail (and if I read Judge Cassell's article, I am sure he would answer those questions).

I am one of those who think that the civilians in the courtroom (victims, jurors, witnesses, and, yes, defendants) get short shrift while the attorneys and judges are busy doing their things. A small bit of actual communication with these people would go a long way toward making the judicial branch (particularly at the trial level) less impenetrable.
9.8.2008 11:17am
Adam J:
I have the utmost sympathy for crime victims, but the criminal justice system has to recognize that both that they're not unbiased participants in the system, and that sympathy for victims can often cloud the judgment of factfinders.
9.8.2008 11:24am
Muskrat (mail):
So in a case where two people exhcanaged blows, and one is on trial, calling the other one "the victim" pretty mcuh tells the jury who to believe, doesn't it? In fact, having a court-specified "victim" pretty much tells the jury whether a crime occurred, right? "How can that guy claim he's innocent of fraud in this case? The victim is right here! You can't have a victim without a crime" Some of the rule changes about notice and protection of privacy are reasonable, but the idea that a new party with the officially-sanctioned title of "victim" can be injected into proceedings without prejudicing outcomes is not credible. The definition of "crime victim" in 18 USC 3771(e) requires that an offense have been committed. Any pre-conviction action to enshrine a "victim" should be stopped as a blatant violation of defendant's due process rights.

(putting aisde for a moment the sheer logistical impossibility of including hundreds or thousands of "victims" in large-scale fraud or racketeering cases....)
9.8.2008 11:26am
I missed the part about the victim's role in the grand jury process -- you know, controlling who appears, preparing them, making sure their attorney is present to cross examine them.

I thought the social compact among the citizenry is the trade-off of the "natural" right to seek revenge in exchange for the state's promise to protect, defend, and prosecute.

Absent that bargain, wouldn't we have anarchy?

The suggestions the professor is making is moving us closer to an anarchistic social structure.
9.8.2008 12:00pm
Calculated Risk:

You argument is characterized by several logical flaws:

(1) You argue that the injury that is "vindicated" must be either the state's or the victims:

Whose injury is being vindicated in a criminal prosecution? If it's not the state's injury, fine.

As a logical matter, there is no reason to think that vindicating the crime victim's injury precludes vindicating the injury to the state. I don't know why you are drawn to this particular false dichotomy.

Well, this is only the beginning. You more absurdly argue that if it is not the state's injury, we should:

return to the system of private prosecutions that they had in Rome.

Well, should hospitals that receive federal funding not be required to treat indigent individuals who show up in emergency rooms with severe physical injuries? Surely, this is a case where the injury is primarily to the individual and not the state, but the government still funds treatment of that injury.

Your suggestion that if the injury is primarily to the individual rather than the state we must privatize prosecutions is absurd. It does not logically follow, even if your false dichotomy were to hold such that vindicating the injury to a victim precluded vindicating an injury to the state, that a system where such a private injury were the exclusive interest being vindicated that private prosecutions would somehow be logically compelled.

And that would be a very strange and twisted world, would it not?

"I am sorry that you were raped. If you had more money, you could afford to prosecute. Too bad for you."

Clearly, basic security against crime is such a fundamental human right, that it would be entirely reasonable to subsidize the prosecution of crimes against poor and middle class individuals who would otherwise be unable to pay for it, just as we subsidize the emergency treatment of poor and middle class individuals in emergency rooms, who would otherwise be unable to pay for it.

In any case, the idea that the interests of victims as well as the state is not being represented by the prosecution is entirely false in practice. In theory land, perhaps that is what is occurring, but if you actually look at the reality of the exercise of prosecutorial discretion, it is not entirely unrelated to the wishes of the victim.

I will go further and say this. The idea that the state is injured is entirely a legal fiction. The state does not really exist, but is instead an abstraction. It cannot really be injured, except by definition.

One should not use fictions, legal or otherwise, to argue against policies intended to impact real people. Now, it is fine to argue a legal fiction in court. But, when you put on your policy hat, it is no longer appropriate to live in fantasy land when you make policy that impacts real people, not merely fictional entities.

And here is the basic problem I have with your argument. You seem to be against the additional rights to victims. Probably because you are concerned about the possible negative impacts to criminal defendants. But, you also know that in any argument pitting criminal defendants and crime victims, criminal defendants will lose. Thus, you result to fictions and various bits of illogic, rather than making your argument directly.

I am a liberal. I believe in rights for criminal defendants. And I am also fully supportive of Paul Cassell's policy proposal, despite my strong suspicion that I would agree with him on little else regarding policy. In the real world, crime victims do have a very real interest that needs to be vindicated. That should be acknowledged.

Who does the fiction that it is only the state's interests are the only ones being vindicated in a criminal prosecution benefit anyway? I would say primarily the criminal defendant who has done something very wrong to someone, and who has somehow created an aggrieved victims who is not fully able to express themselves in the proceedings that follow. Who pays a cost? Aggrieved victims.

I think that this fiction has to go. Yes, the state's interest in law and order is being vindicated. But, that is not the only interest being vindicated.
9.8.2008 12:07pm
There are certainly cases where a spirited defense may cause additional damage to the supposed victim or to witnesses, and it seems proper to me to allow that they have proper representation to mitigate such damage when it's unnecessary. But beyond that, the interests of the victim should be represented by the state.
9.8.2008 12:07pm
Alex B:
Why is it that crimes are treated as being against "the People"?

Some historical context might help dispose of an idea that was found wanting over 1,000 years ago. Or should we return to wergeld also?
9.8.2008 12:14pm
David Chesler (mail) (www):
What everyone else said.
And what do you do when there is no victim? (Not only when there is no living victim, but things like drug cases? Or tax cases?)
9.8.2008 12:34pm
anonymouseducator (mail):
What does this post have to do with Sarah Palin or Barack Obama?
9.8.2008 12:40pm
Ryan Waxx (mail):

And what do you do when there is no victim?... (like) tax cases?

Oh, tax cases don't exist anymore. Didn't you hear Calculated Risk? Injuries to the state are entirely fictional now.
9.8.2008 12:52pm
trad and anon:
Alleged victims. There are lots of cases where the status of the victim isn't disputed, but there are also lots where the defendant's argument is that the supposed "victim" isn't a victim at all.
9.8.2008 1:00pm
American Psikhushka (mail) (www):
What happens when the "victims" are making false claims and the situation is actually completely reversed - the "victims" are the criminals and the "criminals" are the victims? Or when prosecutors have it wrong and the "criminals" are actually victims as well?

I seem to remember something about "innocent until proven guilty".
9.8.2008 1:11pm

I seem to remember something about "innocent until proven guilty".

You must be very old. That concept's demise was confirmed in the USN&WR early 1980's interview of Ed Meese, who said that a person wouldn't be a suspect if s/he wasn't guilty.

Where have you been?
9.8.2008 1:16pm
Visitor Again:
So in a case where two people exhcanaged blows, and one is on trial, calling the other one "the victim" pretty mcuh tells the jury who to believe, doesn't it? In fact, having a court-specified "victim" pretty much tells the jury whether a crime occurred, right?

I love it when the prosecution includes the defendant's street name/gang name/nickname in the indictment or information, which the court reads to the jury at the start of the case. I've seen charges read to the jury that included nicknames like Mad Dog, Thug, Criminal, Beast, Animal, Killer, Crazy Man.

The jury could be told something like this:

"Ladies and gentlemen of the jury, this is the case of People of the State of California versus Michael 'Mad Dog' Ramirez. Also a party in this case is the victim, Mary Jones."

The victim's lawyer--or the victim herself if unrepresented--could be given the right to question all witnesses. to make legal objections, to participate in arguments over legal questions, like the admissibility of evidence, and to make opening statements and closing arguments before the jury.

As an incidental benefit, this would contribute to full employment for lawyers.
9.8.2008 1:17pm
Realist Liberal:

So in a case where two people exhcanaged blows, and one is on trial, calling the other one "the victim" pretty mcuh tells the jury who to believe, doesn't it?

I realize this is off topic but when I was at the District Attorney's Office we had a running joke:

What do you call the loser of a fight? Victim
What do you call the winner? Defendant
9.8.2008 1:17pm
I'll state what I've said before over again. What happens in practice is these rules provide cover for the District Attorney to delay bail reviews, court hearings etc when they want to, and when the "victim" agrees with them, but if the "victim" doesn't, they completely ignore them.

As to a right to participate in bail reviews, what does that mean exactly? If a defendant (who is presumed innocent) applies for a bail review and finally gets one 2-3 days later, and the DA comes in and says they have not yet notified the alleged victim? Does the (still innocent) defendant have to have their right to a bail review (which is typcially statutory) delayed because the state failed to call the alleged victim?
9.8.2008 2:18pm
Benjamin Coates (mail):
In the real world, crime victims do have a very real interest that needs to be vindicated.

No, they don't. The only interest the crime victim has is in getting a check from a restitution fund (if applicable) and getting on with their lives, and the sooner they realize this the better. The last thing we need is to create a culturally obligatory arms race for who can go to greater lengths to demonstrate their victimhood.

Imagine, for example, that a child is murdered. We already have the situation where the parents are expected to attend extensive court cases a year or more later (or be seen as uncaring), and go on the stand and give an impact statement (or perhaps be responsible for the murderer getting a lenient sentence), and perhaps even lobby to have the case not dropped through endless death penalty hearings. If the murderer is sentenced to a paroleable offense, after some years they'll have to show up at some hearing, with a picture of thier long-dead tears, and summon up the emotions they've hopefully put to bed, for some completely gratiutious competition where they either "win" the ability to do it again in a few years or "lose" to the person who already took their child from them.

Now, we have a whole new to-do list of mandatory (seriously, could you imagine the reaction to the parents who failed to do every little thing leagally possible) actions for each crime victim to take instead of trying to put their lives back together in the wake of a serious crime. This doesn't help anyone but the lawyers.

If you want to help crime victims, when they ask "what can I do?" you answer, "Go home, get some sleep, we'll take care of it"
9.8.2008 2:52pm
Ryan Waxx (mail):
Not to mention that showing up at the parole hearings over and over gives the felon a reason to look them up after he gets free...
9.8.2008 2:57pm
if victims have nothing in our system, what exactly do we call the police, prosecution, prison system, jails, probation, etc? they are all taxpayer funded and generally stacked up against the offender. alleged victims are able to participate in the proceedings that involve them-in fact, as witnesses, it would seem to me their involvement is a requirement. I would add, in terms of being treated with "dignity", that the average court system doesn't really treat anyone with dignity-that's not its job. hattio is right-the victim is fine if they are with the program and they agree with the State. does the professor agree that, should the victim want a charge dismissed, the prosecution should accede to those wishes as well.
9.8.2008 3:10pm
Crunchy Frog:

Are protecting alleged victims' rights really the responsibility of the Judiciary? Where in the Constitution is that located?

Who else do you propose handle it? Congress? Or do victims have no rights worth protecting?

Not to mention that showing up at the parole hearings over and over gives the felon a reason to look them up after he gets free...

When obviously he has no reason to go after them now, right? I mean, it's not like they testified against him at trial or anything.
9.8.2008 3:36pm
Some of these proposals appear to grant victims potentially outcome-altering rights, which will be problemmatic for many reasons, including raising potential conflicts with defendants' Sixth Amendment rights. Victims already have significant rights under the Crime Victims' Rights Act of 2004, 18 U.S.C. ยง3771, but some of these proposals appear to go well beyond that law.

The most dangerous proposals relate to the insertion of victims into plea bargaining, decisions to dismiss or reduce charges, the timing and venue of proceedings, and the ability to participate in criminal discovery. Victims not only have actual bias against the defendant, they often have inherent conflicts of interest stemming from restitution and follow-on civil action rights. Further, victims are often also trial witnesses, and would be subject to Jencks discovery and cross-examination about all statements made while exercising newfound pretrial v/w rights. Victims are never going to be privy to all the information available to the prosecutor that goes into charging and plea decisions, including evidence protected by grand jury secrecy under Rule 6(e), Giglio and Brady information that materially impacts the prospects of successful prosecution, and many of the other factors that tend to go into the dispassionate exercise of prosecutorial discretion.

Every U.S. Attorney's Office already has dedicated victim/witness coordinators charged with ensuring that crime victims are treated fairly and with respect. Further ramping up victim rights rules to the point where victims can materially interfere with prosecutorial and judicial decisions seems to be a "solution" that will create more problems than it will fix.
9.8.2008 3:55pm
Dave N (mail):

I almost agree completely with your post. However, I differ with your objection to having victim input (not veto) into the timing and venue of proceedings.

Onr of the more frustrating things for victims in some jurisdictions is the court schedule, which at times appears to accomodate everyone else's time except the victim's.

The same can be true of venue. In some jurisdictions, there may be court branches in more than one locale in the county or judicial district--and while the trial location may be a prosecution function (think having the O.J. trial downtown rather than in suburban LA County), the victim's views should at least be considered.
9.8.2008 4:07pm
T Trent (mail):
Some silly comments, none of which come close to addressing Calculated Risk's explanation or the simple fact that victims' rights do exist, and yes, they exist even despite the existence of some compelling, vague, metaphorical sayings about the law. You can despise the fact that victims' rights are codified, but you can't wish it away by invoking metaphors, OK?

Also, few here seem to have even basic understanding of what these rules mean and do not mean. Read the article first?

With that said, in a system where the metaphorical "we" have decided through allocation of resources and other measures that most crime will go entirely un-prosecuted or, at best, be wildly pled down, it is interesting that so many are vehement in their concern over subjectivity in the system. Subjectivity works in the offender's favor virtually all of the time.

Frankly, that is more deserving of the term "vengeance" than any alleged victim thought-crime. Interesting, too, how much anxious feeling attends the imagined feelings of victims. The desire on the part of those wishing to free criminals to also police victims' thoughts is chilling.
9.8.2008 4:34pm
Public_Defender (mail):
There are a whole set of rules specifically designed to help people collect money from wrongdoers--the Federal Rules of Civil Procedure.

Have conservatives spent so much time and energy dissing the civil justice system that they don't dare allow anyone to use it?

But hey, increasing the role of victims in the criminal justice system is good for one group--court-appointed criminal defense lawyers. The cases will be more complex, and the courts will need to pay lawyers for more time.
9.8.2008 7:36pm
The problem I see here is the way people assume (and I see cops do this too) that an ALLEGED victim is in fact - A VICTIM. Just as a defendant is presumed innocent until proven guilty, at a minimum a "victim" should not be PRESUMED truthful and/or an actual VICTIM just because they've made a complaint and/or a defendant has been charged. We see this in criminal investigations, where as soon as a cop and./or DA glom onto person X as THE VICTIM (tm) everything they say gets the benefit of the doubt, and what the defendant says often gets discounted without much if any investigation.

Victims should of course have rights, but let's remember that just because somebody SAYS they are a victim doesn't mean they ARE. We also see this bias in how "victims" who are later discovered to have not been victims are treated with kid gloves far more so than any other criminal suspect. Duke case is just an extreme example.

The problem with just assuming the victim IS a victim is that we start "buying into" everything they say, we fail to look critically at what they say, like we would with defendants, and justice is hampered.

I don't see any easy solution to this, it's mostly a matter of mindset change, but people in the CJ system have to accept that just because somebody SAYS they are a victim doesn't make it true. We naturally want to believe them because a victim is by definition - a sympathetic figure. They are a victim after all.
9.8.2008 8:07pm
You're blowing my mind again....we agree once again. I will add that the "why would anyone lie about being a victim" is the most frustrating trope I've ever heard.
9.8.2008 9:35pm
jigmeister (mail):
As a retired prosecutor there are some proposals that I like and others that I dislike: I really dislike any provisions requiring counsel for victims. Some well to to victims already hire lawyers to lobby prosecutors. Permitting them to lobby judges seems way over the top.

Provisions requiring prosecutors to adequately notify victims of all court setting and the nature of those settings is very appropriate as long as funding is provided to insure that staffing is adequate. Believe me that has long been a complaint of victims.

During sentencing it would be appropriate to permit victims to reveal all consequences of a crime, but that would take the reversal of several Scotus opinions.

I don't see any reason not to consult and inform the victim of plea bargain offers, but they cannot have a veto or dictate the offer. Prosecutors are charged with doing justice, victims are not.
9.8.2008 9:37pm
Public_Defender (mail):
Part of the reason behind this legislation and rulemaking is that too many prosecutors treat the victims as just another witness. Some prosecutors shamefully manipulate victims. As defense counsel, one of my practice rules is to never needlessly cause distress to a victim. Regardless of the strength of the State's case, it's almost never in a defendant's interest to rub salt in a victim's wounds.

While I agree that the formal role of alleged victims in criminal litigation should be limited (formally, they should be considered alleged victims), the informal role should be significant. Smart and decent prosecutors treat listen to victims and seriously consider the victims' concerns when making litigation decisions. But not all prosecutors are smart and decent.

On the other side, judges are all too tolerant of fraud by crime victims in restitution proceedings. Defendants who depend on the court's discretion for a reduced prison term are in no position to test a victim's false restitution allegations. I've seen too many property-damage cases in which judges just rubber stamp a victim's fanciful and fraudulent restitution claim.
9.9.2008 6:48am