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2007 Utah L. Rev. 861, *871

The full Advisory Committee took up the Subcommittee's proposals at its meeting on October 24-25, 2005. 68 It largely agreed with the Subcommittee's proposals, approving a limited set of changes to the Rules to implement the CVRA. The Advisory Committee sent a report of its proposed changes to the Standing Committee on Rules of Practice and Procedure in December, 2005. 69 The Advisory Committee described its changes as seeking "to incorporate, but not go beyond, the rights created by the statute." 70 The rules were then circulated for nationwide public comment. 71 The Advisory Committee held a public hearing on [*872] the rule change in Washington, D.C. on January 26, 2007. I testified at the hearing, presenting this Article as my testimony. 72

III. The CVRA's Right to Fairness Requires Comprehensive Changes to Protect Victims

The CVRA requires fundamental changes in the Federal Rules of Criminal Procedure. The CVRA makes crime victims participants in the criminal justice process and commands in sweeping terms that the courts must treat victims "with fairness and with respect for the victim's dignity and privacy." 73 To faithfully implement that directive, it is necessary to assess each of the existing rules against a fairness standard and then make changes and additions where the Rules do not guarantee fair treatment to victims.

The Advisory Committee has made some useful progress in that direction. It should be commended for the careful drafting of its proposed changes and the thoroughness with which it explored the topic. Moreover, it is the nature of articles such as this one to highlight points of disagreement rather than points of agreement. The Advisory Committee has seen fit to adopt several of the proposals that I recommended, 74 a fact that should not be overlooked.

Unfortunately, the Advisory Committee acted timidly. Instead of reviewing all the Rules to determine whether they treated victims fairly, the Advisory Committee decided it would not venture beyond parroting specifically described rights in the CVRA. The committee's reporter, well-regarded Duke law professor Sara Sun Beale, articulated the Advisory Committee's drafting technique as simply incorporating rights created by Congress:

The most basic decision was how far beyond the statutory provisions the rules should go at this time. Although the CVRA enumerates a number of specific rights, it also contains general language stating that victims have a "right to be treated with fairness." Judge Cassell advocates using this general right to fairness as a springboard for a variety of victim rights not otherwise provided for in the CVRA.

[We] concluded that the rules should incorporate, but not go beyond, the specific statutory provisions. The CVRA reflects a careful Congressional balance between the rights of the defendant, the discretion afforded to prosecution, and the new rights afforded to victims. In light of this careful statutory balance, [we] felt that it would not be appropriate to create new victim rights not based upon the statute. Rather, [we] [*873] sought to incorporate the rights Congress did afford into the rules. In so doing, [we] attempted, to the degree possible, to use the statutory language. [We] anticipate[] that the courts will develop the

68 Judicial Conference of the United States, Minutes of the Advisory Committee on the Rules of Criminal Procedure (Oct. 24-25, 2005), available at http://www.uscourts.gov/rules/Minutes/CR10-2005-min.pdf [hereinafter Advisory Committee Minutes].

69 Judicial Conference of the United States, Report of the Advisory Committee on Criminal Rules (Dec. 8, 2005), available at http://www.uscourts.gov/rules/Reports/CR12-2005.pdf [hereinafter Advisory Committee Report].

70 Id. at 2.

71 Committee on Rules of Practice & Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure (Aug. 2006), www.uscourts.gov/rules/newrules1.html [hereinafter Proposed Amendments] (last visted Dec. 30, 2007).

72 All testimony and other comments about the proposed changes can be found at www.uscourts.gov/rules/Proposed0206-1.htm.

73 18 U.S.C. § 3771(a)(8) (2006) (emphasis added).

74 See, e.g., infra notes 96-97 and accompanying text (discussing amendment to Rule 18).

DAVID SCHOEN
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