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2007 Utah L. Rev. 861, *878

In 1983, the Advisory Committee changed Rule 11(a)(2) to eliminate a split of authority on conditional guilty pleas. One of the reasons for the change was to "produce much needed uniformity in the federal system on this matter." 105

In 1994, the Advisory Committee amended rule 32(b)(2) to give defense counsel an opportunity to be present when probation officers interviewed their clients while preparing a presentence report. 106 The Advisory Committee Notes explained that while there was no constitutional right to counsel at this point in the process, caselaw in two circuits suggested that requests of counsel to be present should be honored as a matter of prudence. 107 What is particularly interesting about [*879] this example is that the Advisory Committee stepped in to protect the legitimate interests of defendants even in the absence of a constitutional or statutory command to do so. Of course, the CVRA creates a statutory command to the Advisory Committee to protect victims' interests.

In 2002, the Advisory Committee amended Rule 51 to provide that court rulings admitting or excluding evidence were governed by the Federal Rules of Evidence. The reason was to avoid "the possibility that an argument might have been made" that an earlier congressional action conflicted with the rules of evidence. 108 In other words, the Advisory Committee simply anticipated and resolved an interpretive question that might otherwise have arisen.

In 2005, the Advisory Committee amended Rule 12.2 to provide sanctions for a party's failure to disclose certain alibi information. 109 The reason for the change was to "fill[] a gap" in the Rules. 110

In these instances, the Advisory Committee stepped in to avoid unnecessary litigation and to clarify the application of the Rules. Not only is this the Advisory Committee's standard approach, but there are particularly strong reasons for not leaving clarification of crime victims' rules to case-by-case litigation. The most significant problem is that such litigation will occur only in fits and starts. Unlike the government and criminal defendants who always have legal representation, crime victims have no right to appointed counsel and are often indigent or otherwise unable to afford to hire an attorney. 111 As a result, in many cases it is an empty gesture to promise victims that they can litigate application of the Rules. As a practical matter, they will often be unable to do so. 112 Indeed, the Advisory Committee seemingly compounds this problem by declining to put into the Rules any restatement of courts' discretionary authority to appoint counsel for crime victims. 113

Even in cases where victims can afford counsel to defend their legal rights, the kind of litigation that the Advisory Committee envisions will be unenlightening and formalistic. For instance, while I have proposed including a specific provision in the Rule 11 guilty plea colloquy requiring that the court address a victim before accepting a plea, 114 the Advisory Committee has not recommended any change. This failure could well spawn litigation about the victims' role in the plea process that will require courts to consider why Rule 11 fails to mention crime victims and how this failure interplays with the CVRA's commands on

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105 Fed. R. Crim. P. 11 advisory committee's note (1983 Amend.).

106 Fed. R. Crim. P. 32 advisory committee's note (1994 Amend.).

107 Id.

108 Fed. R. Crim. P. 51 advisory committee's note (2002 Amend.).

109 Fed. R. Crim. P. 12.2 advisory committee's note (2005 Amend.).

110 Id.

111 See Beloof, Cassell & Twist, supra note 6, at 381.

112 In theory, the government is given authority to assert rights for crime victims, see 18 U.S.C. § 3771(d)(1) (2006), but in practice the reported cases under the CVRA thus far show few examples where the government has been willing to do so. See, e.g., Kenna v. U.S. Dist. Court for the Cent. Dist. of Cal., 435 F.3d 1011, 1018 (9th Cir. 2006) (victims' assertion of right affirmed; government does not take a position on the claim).

113 See infra notes 449-463 and accompanying text (discussing proposed rule 44.1).

114 See infra notes 145-152 and accompanying text.

DAVID SCHOEN

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