HOUSE_OVERSIGHT_017708.jpg

Page 73 of 78

2007 Utah L. Rev. 861, *963

to speak at those hearings does not interfere with the defendant's right to be notified of those hearings, attend those hearings,
and to speak at those hearings. Perhaps this is why the NACDL could only assert that "in general" victims' rights harm
defendants - the NACDL did not provide a single supporting example.

Moreover, the procedure that the NACDL would put in place - a full evidentiary hearing with the defendant able to cross-
examine the victim to be determine "victim" status - is novel and unwarranted. While crime victims' rights have existed in all
fifty states and the federal system for the last two decades, no [*964] jurisdiction has ever required anything like this. 567
Instead, procedural issues of how to determine victim status are left to the sound discretion of the trial courts.

To give a defendant an automatic right to challenge victim status raises constitutional and other problems. A defendant who
simply complained about a victim designation would lack "standing" under Article III of the Constitution, because there would
be no "threatened or actual injury resulting from the putatively illegal action." 568 Moreover, to give defendants free license to
cross-examine victims about whether they were truly victims would obviously create a right to discovery in a criminal case that
contradicts current law 569 and circumvents the stringent limitations on depositions of witnesses found in Rule 15. 570 The
potential for abusive questioning of victims in such hearings (where no jury is present to be alienated) should also not be
overlooked. 571 The victims' rights provisions in this country have never been used to give defendants new rights to question
and potentially traumatize victims. The CVRA's expansion of victims' rights should not be the occasion to start. 572

V. Conclusion

This Article has tried to make the case for specific changes to the Federal Rules of Criminal Procedure to protect crime
victims' rights, particularly those rights listed in the CVRA. The Article has attempted to sketch out one way that the Rules
could be amended to do this while at the same time contending that the Advisory Committee's pending victims' rights proposals
are too restrictive. In concluding the Article, it may be useful to raise broader concerns about the Advisory Committee's
minimalist approach.

In reviewing the Advisory Committee's proposals, some might reach the conclusion that the Committee treated the victims
issue as a chore to be survived rather than an opportunity to be seized. One can read the Committee's proposals and the minutes
of its discussions without finding much enthusiasm for the idea of crime victims becoming a part of the criminal justice
process. This reluctance may be part of a larger phenomenon of hostility by the legal culture to crime victims, as other scholars
and I have argued elsewhere. 573

officials prosecute, punish and release accused or convicted offenders." Tribe & Cassell, supra note 28; accord S. Rep. 106-254, at 1-2 (2000)
(Victims' Rights Amendment designed to guarantee victims participatory rights in government process). That is why the CVRA states that the
rights must be afforded by government agencies and actors. See 18 U.S.C. § 3771(c)(1) (2006).

567 Communication from Professor Douglas Beloof, Director of the National Crime Victims Law Institute (Jan. 19, 2007) (on file with
author).

568 Warth v. Seldin, 422 U.S. 490, 499 (1975) (internal quotation omitted).

569 See supra notes 206-211 and accompanying text.

570 See supra note 210 and accompanying text.

571 See Cassell, Proposed Amendments, supra note 4, at 1434-37 (explaining how cross-examination of victims at Utah's preliminary
hearings has traumatized victims).

572 The Advisory Committee ultimately agreed with this position, and added language to a Committee Note stating simply that the court
could make findings to resolve any dispute about who was a victim. See infra note 580.

573 See, e.g., Cassell, Proposed Amendments, supra note 4, at 534 ("The "legal culture' ... is one that has not made room for crime victims.");
Edna Erez, Victim Participation in Sentencing: And the Debate Goes On ... , 3 Int'l Rev. of Victimology 17, 29 (1994) (noting socialization
of legal scholars "in a culture and structure that do not recognize the victim as a legitimate party in criminal proceedings"); see also Stephanos
Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 964 (2006) (suggesting crime victims can effectively
monitor the behavior of "insiders" in the system).

DAVID SCHOEN

HOUSE_OVERSIGHT_017708