Crime Victims’ Rights Act: A Summary and
Legal Analysis of 18 U.S.C. 3771
Charles Doyle
Senior Specialist in American Public Law
April 24, 2012
Congressional Research Service
7-5700
www.crs.gov
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CRS Report for Congress
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epared for Members and Committees of Congress
Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
Summary
Section 3771 of Title 18 of the United States Code is a statutory bill of rights for victims of
crimes committed in violation of federal law or the laws of the District of Columbia. It defines
victims as anyone directly and proximately harmed by such an offense, individuals and legal
entities alike. It does not appear to include family relatives of a deceased, child, or incapacitated
victim except in a representative capacity.
Numbered among the rights it conveys are (1) the right to be reasonably protected from the
accused; (2) the right to notification of public court and parole proceedings and of any release of
the accused; (3) the right not to be excluded from public court proceedings under most
circumstances; (4) the right to be heard in public court proceedings relating to bail, the acceptance
of a plea bargain, sentencing, or parole; (5) the right to confer with the prosecutor; (6) the right to
restitution under the law; (7) the right to proceedings free from unwarranted delays; and (8) the
right to be treated fairly and with respect to one’s dignity and privacy.
The section directs the courts and law enforcement officials to see to it that the rights it creates
are honored. Both victims and prosecutors may assert the rights and seek review from the
appellate courts should the rights be initially denied.
The section vests no rights in the accused nor does it create cause of action damages in any
instance where a victim is afforded less than the section’s full benefits.
Conforming amendments to the Federal Rules of Criminal Procedure became effective on
December 1, 2008. The Justice Department promulgated implementing regulations on November
17, 2005. The text of Section 3771 is appended, as is that of Rule 60 of the Federal Rules of
Criminal Procedure.
This report is available in an abridged form, without quotations marks, footnotes, appendices, and
most of the citations to authority, as CRS Report RS22518, Crime Victims’ Rights Act: A Sketch of
18 U.S.C. 3771, by Charles Doyle.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 1
Who Is a Victim? ............................................................................................................................. 5
Persons....................................................................................................................................... 6
Directly and Proximately Harmed............................................................................................. 7
Crime of Conviction.................................................................................................................. 8
Family of Victims .................................................................................................................... 10
Crimes Under What Law......................................................................................................... 11
The Right to Be Reasonably Protected From the Accused ............................................................ 12
Notice............................................................................................................................................. 13
Public Proceedings .................................................................................................................. 16
Parole Proceedings .................................................................................................................. 16
Involving the Crime................................................................................................................. 16
Reasonable, Accurate, and Timely Notice............................................................................... 17
Release or Escape of the Accused ........................................................................................... 20
Multiple Victims ...................................................................................................................... 21
Attendance ..................................................................................................................................... 21
Participation................................................................................................................................... 24
Reasonably Heard.................................................................................................................... 24
Public Court Release Proceedings........................................................................................... 26
Plea Bargains ........................................................................................................................... 28
Sentencing ............................................................................................................................... 30
Parole and Pardon.................................................................................................................... 31
Appeals.................................................................................................................................... 31
Confer ............................................................................................................................................ 32
Restitution...................................................................................................................................... 32
Reasonable Freedom From Delay.................................................................................................. 35
Fairness, Dignity, and Privacy ....................................................................................................... 37
Responsibilities of the Courts........................................................................................................ 38
Responsibilities of Other Authorities............................................................................................. 39
Enforcement................................................................................................................................... 39
Who ......................................................................................................................................... 39
Mandamus and Appeal ............................................................................................................ 40
Limitations..................................................................................................................................... 42
Limits on Mandamus............................................................................................................... 42
No New Rights for the Accused .............................................................................................. 43
Many Victims—One Accused ................................................................................................. 44
No Damages ............................................................................................................................ 44
Justice Department Regulations..................................................................................................... 45
18 U.S.C. 3771 (text)..................................................................................................................... 46
Rule 60. Victim’s Rights (text) ...................................................................................................... 48
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
Contacts
Author Contact Information........................................................................................................... 49
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
Introduction
The victims of federal crimes enjoy certain rights to notice, attendance, and participation in the
federal criminal justice process by virtue of 18 U.S.C. 3771.1 More specifically, the section
assures victims that they have:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or
any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court,
after receiving clear and convincing evidence, determines that testimony by the victim would
be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.
18 U.S.C. 3771(a).
Section 3771 is the product of a long effort to afford greater deference to victims in the criminal
justice process. It is akin to the victims’ bill of rights provisions found in the laws of the various
states and augments a fairly wide variety of preexisting federal victims’ rights legislation. Its
enactment followed closely on the heels of discontinued efforts to pass a victims’ rights
amendment to the United States Constitution.
Background
Legal reform in the name of the victims of crime began to appear in state and federal law in the
1960s. It can be seen in victim restitution and compensation laws;2 in the reform of rape laws,3
1 Section 3771 was enacted as part of the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila
Lynn Crime Victims’ Rights Act (CVRA), which in turn appears as Title I of the Justice For All Act of 2004, P.L. 108-
405, 118 Stat. 2260 (2004). The text of Section 3771 is appended.
2 But What About the Victim? The Forsaken Man in American Criminal Law, 22 UNIVERSITY OF FLORIDA LAW REVIEW
1, 10-20 (1969)(describing early state victim compensation statutes); The President’s Commission on Law
Enforcement and Administration of Justice, Task Force on Assessment, Task Force Report: Crimes and Its Impact—An
Assessment 83 (1967)(“The Commission has been impressed by the consensus among legislators and law enforcement
officials that some kind of State compensation for victims of violent crime is desirable”).
3 Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 UNIVERSITY OF PENNSYLVANIA LAW
REVIEW 544, 544, 550 n.23 (1979)(“In the past few years, forty-six states have made efforts to protect rape victims
from the humiliation of public disclosure of the details of their prior sexual activities”)(also noting the elimination of
corroboration requirements that refused to allow a rape conviction based solely upon the testimony of the victim); see
(continued...)
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
drunk driving statutes,4 and bail laws;5 and in provisions for victim impact statements at
sentencing,6 to name a few. Over time in many jurisdictions, these specific victim provisions were
joined by a more general, more comprehensive victims’ bills of rights. Thus by the close of the
20th century, 33 states had added a victims’ rights amendments to their state constitutions7 and
each of the states had a general statutory declaration of victims’ rights.8
In the meantime, Congress had enacted a series of individual victims’ rights provisions9 as well as
a general aspirational federal statute directed to the performance of federal officials:
Victims’ rights.
(...continued)
also, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 COLUMBIA LAW REVIEW 1 (1977).
4 Highway Safety—Menace on Our Highways—Is Implied Consent the Answer? 18 DEPAUL LAW REVIEW 753, 754 n.7
(1969)(noting the trend to enact implied consent to statutes to permit authorities to test the blood alcohol level of
suspected drunken drivers).
5 Bail Reform in the State and Federal Systems, 20 VANDERBILT LAW REVIEW 948, 959-60 (1967)(noting the preventive
detention tendency of state courts to consider, in setting bail, the danger of the accused to the community including past
and future victims); see also Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 VIRGINIA LAW
REVIEW 1223, 1236 (1969)(noting that the Administration’s preventive detention proposals were limited to crimes
which usually “involve planning, deliberation and the purposeful selection of a victim who is almost always a
stranger”).
6 Talbert, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLA LAW REVIEW
199, 200-201 & n.12 (1988)(noting that by the mid-1980’s at least thirty-eight states had enacted statutes calling for
some form of victim impact statement at sentencing).
7 ALA.CONST., Amend. 557; ALASKA CONST. art.I, §24; ARIZ.CONST. art.2, §2.1; CAL. CONST. art.I, §28; COLO.CONST.
art.II, §16a; CONN.CONST. art.I, §8[b.]; FLA.CONST. art.I, §16(b); IDAHO CONST. art.I, §22; ILL.CONST. art.I, §8.1;
IND.CONST. art.1, §13; LA.CONST. art.1, §25; KAN.CONST. art.15, §15; MD.D.OF RTS. art.47; MICH.CONST. art.I, §24;
MISS. CONST. art. 3,§26A; MO.CONST. art.I, §32; MONT. CONST. Art.2, §28; NEB.CONST. Art.1, §28; NEV.CONST. art.1,
§8; N.J. CONST. art.I, §22; N.MEX. CONST. art.II, §24; N.C.Const. art.I, §37; OHIO CONST. art.I, §10a; OKLA.CONST.
art.II, §34; ORE.CONST. art. I, §24; R.I. CONST. art.I, §23; S.C.CONST. art.I, §24; TENN.CONST. ART.I, §35; TEX.CONST.
art.I, §30; UTAH CONST. art.I, §28; VA.CONST. art.I, §8-A; WASH.CONST. art.I, §35; WIS. CONST. art.I, §9m.
8 ALA.CODE §§15-23-60 to 15-23-84; ALASKA STAT. §§12.61.010 to 12.61.050; ARIZ.REV. STAT.ANN. §§13-4401 to
13-4438; ARK.CODE ANN. §§16-90-1101 to 16-90-1115; CAL. PENAL CODE §§679 to 679.04; COLO.REV.STAT.ANN.
§§24-4.1-301 to 24-4.1-304; CONN. GEN.STAT.ANN. §§54-201 to 54-233; DEL.CODE ANN. tit.11 §§9401 to 9419;
FLA.STAT. ANN. §§960.001 to 960.297; GA.CODE ANN. §§ 17-17-1 to 17-17-165; Haw.Rev.Stat. §§801D-1 to 801D-7;
IDAHO CODE §19-5306; ILL.COMP.LAWS ANN. ch.725 §§120/1 to 120/9; IND.CODE ANN. §§35-40-5-1 to 35-40-5-9;
IOWA CODE ANN. §§915.1 to 915.100; KAN.STAT.ANN. §74-7333; KY.REV.STAT.ANN. §§421.500 to 421.550;
LA.REV.STAT.ANN. §§46:1841 to 46:1844; ME.REV.STAT.ANN. tit.17-A §§1171 to 1175; MD.CODE ANN. art.27 §§761
to 789; MASS.GEN.LAWS ANN. ch.258B §§1 to 13; MICH.COMP.LAWS ANN. §§780.751 to 780.834; MINN.STAT.ANN.
§§611A.01 to 611A.90; MISS.CODE ANN. §§99-43-1 to 99-43-49; MO.ANN.STAT. §§595.200 to 595.218; MONT.CODE
ANN. §§46-24-101 to 46-24-213; NEB.REV.STAT. §81-1848; NEV.REV.STAT. §§178.569 to 178.571; N.H.REV.
STAT.ANN. §21-M:8-k; N.J.STAT.ANN. §§52:4B-36 to 52:4B-49; N.MEX.STAT.ANN. §§31-26-1 to 31-26-14;
N.Y.EXEC.LAW §§640 to 649; N.C.GEN.STAT. §§15A-830 to 15A-841; N.D.CENT.CODE §§12.1-34-01 to 12.1-34-05;
OHIO REV.CODE ANN. §§2930.01 to 2930.19; OKLA.STAT.ANN. tit. 19 §215.33; ORE.REV.STAT. §§147.405 to 147.421;
PA.STAT.ANN. tit.18 §11.201; R.I.GEN.LAWS §§12-28-1 to 12-28-12; S.C.CODE ANN. §§16-3-1510 to 16-3-1565;
S.D.COD.LAWS ANN. §§23A-28C-1 to 23A-28C-6; TENN.CODE ANN. §§40-38-101 to 40-38-108; TEX.CODE OF
CRIM.PRO. arts.56.01 to 56.12; UTAH CODE ANN. §§77-38-1 to 77-38-14; VT.STAT.ANN. tit.13 §§5301 to 5321;
VA.CODE ANN. §§19.2-11.01 to 19.2-11.4; WASH.REV.CODE ANN. §§7.69.020 to 7.69.030; W.VA.CODE §§61-11A-1 to
61-11A-8; WIS.STAT.ANN. §§950.01 to 950.11; WYO.STAT. §§1-40-201 to 1-40-210.
9 E.g., 18 U.S.C. 3510 (victim attendance rights), 3525 (victims compensation fund), 3555 (notice to fraud victims),
3663-3664 (restitution), F.R.Crim.P. 32(i)(4)(B)(victim impact statements at sentencing), F.R.Evid. 412 (relevancy of
victims’ past conduct).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
(a) Best efforts to accord rights. Officers and employees of the Department of Justice and
other departments and agencies of the United States engaged in the detection, investigation,
or prosecution of crime shall make their best efforts to see that victims of crime are accorded
the rights described in subsection (b) of this section.
(b) Rights of crime victims. A crime victim has the following rights:
(1) The right to be treated with fairness and with respect for the victim’s dignity
and privacy.
(2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings related to the offense,
unless the court determines that testimony by the victim would be materially
affected if the victim heard other testimony at trial.
(5) The right to confer with [the] attorney for the Government in the case.
(6) The right to restitution.
(7) The right to information about the conviction, sentencing, imprisonment, and
release of the offender.
(c) No cause of action or defense. This section does not create a cause of action or defense in
favor of any person arising out of the failure to accord to a victim the rights enumerated in
subsection (b) of this section. 104 Stat. 4820, 42 U.S.C. 10606 (2000 ed.).10
Section 10606 was accompanied by a statement of the sense of Congress encouraging similar
action by the states11 and by specific directions to the heads of the various federal law
enforcement departments and agencies for implementation.12
10 Congress repealed Section 10606 when it enacted Section 3771, P.L. 108-405, §102(c), 118 Stat. 2264 (2004).
11 104 Stat. 4822 (1990), 42 U.S.C. 10606 nt (“It is the sense of Congress that the States should make every effort to
adopt the following goals of the Victims of Crime Bill of Rights: (1) Victims of crime should be treated with
compassion, respect and dignity throughout the criminal justice process. (2) Victims of crime should be reasonably
protected from the accused throughout the criminal justice process. (3) Victims of crime should have a statutorily
designated advisory role in decisions involving prosecutorial discretion, such as the decision to plea-bargain. (4)
Victims of crime should have the right to a reasonable assurance that the accused will be tried in an expeditious
manner. (5) A victim of crime should have the right to be present at all proceedings related to the offense against him,
unless the victim is to testify and the court determines that the victim’s testimony would be materially prejudiced by
hearing other testimony at the trial. (6) Victims of crime should have the right to information about the conviction,
sentencing and imprisonment of the person who committed the crime against them. (7) Victims of crime should be
compensated for the damage resulting from the crime to the fullest extent possible by the person convicted of the crime.
(8) Victims of crime should have a statutorily designated advisory role in deciding the early release status of the person
convicted of the crime against them. (9) A victim of crime should never be forced to endure again the emotional and
physical consequences of the original crime”).
12 42 U.S.C. 10607(a)(“Designation of responsible officials. The head of each department and agency of the United
States engaged in the detection, investigation, or prosecution of crime shall designate by names and office titles the
persons who will be responsible for identifying the victims of crime and performing the services described in
subsection (c) of this section at each stage of a criminal case.
“(b) Identification of victims. At the earliest opportunity after the detection of a crime at which it may be done without
interfering with an investigation, a responsible official shall – (1) identify the victim or victims of a crime; (2) inform
(continued...)
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Moreover, beginning in the 104th Congress, both houses regularly considered victims’ rights
amendments to the United States Constitution.13 Unable to reach the consensus necessary for
(...continued)
the victims of their right to receive, on request, the services described in subsection (c) of this section; and (3) inform
each victim of the name, title, and business address and telephone number of the responsible official to whom the
victim should address a request for each of the services described in subsection (c) of this section.
“(c) Description of services. (1) A responsible official shall – (A) inform a victim of the place where the victim may
receive emergency medical and social services; (B) inform a victim of any restitution or other relief to which the victim
may be entitled under this or any other law and manner in which such relief may be obtained; (C) inform a victim of
public and private programs that are available to provide counseling, treatment, and other support to the victim; and (D)
assist a victim in contacting the persons who are responsible for providing the services and relief described in
subparagraphs (A), (B), and (C). (2) A responsible official shall arrange for a victim to receive reasonable protection
from a suspected offender and persons acting in concert with or at the behest of the suspected offender. (3) During the
investigation and prosecution of a crime, a responsible official shall provide a victim the earliest possible notice of –
(A) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that
it will not interfere with the investigation; (B) the arrest of a suspected offender; (C) the filing of charges against a
suspected offender; (D) the scheduling of each court proceeding that the witness is either required to attend or, under
section 10606(b)(4) of this title, is entitled to attend; (E) the release or detention status of an offender or suspected
offender; (F) the acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial; and (G) the
sentence imposed on an offender, including the date on which the offender will be eligible for parole. (4) During court
proceedings, a responsible official shall ensure that a victim is provided a waiting area removed from and out of the
sight and hearing of the defendant and defense witnesses. (5) After trial, a responsible official shall provide a victim the
earliest possible notice of – (A) the scheduling of a parole hearing for the offender; (B) the escape, work release,
furlough, or any other form of release from custody of the offender; and (C) the death of the offender, if the offender
dies while in custody. (6) At all times, a responsible official shall ensure that any property of a victim that is being held
for evidentiary purposes be maintained in good condition and returned to the victim as soon as it is no longer needed
for evidentiary purposes. (7) The Attorney General or the head of another department or agency that conducts an
investigation of a sexual assault shall pay, either directly or by reimbursement of payment by the victim, the cost of a
physical examination of the victim which an investigating officer determines was necessary or useful for evidentiary
purposes. The Attorney General shall provide for the payment of the cost of up to 2 anonymous and confidential tests
of the victim for sexually transmitted diseases, including HIV, gonorrhea, herpes, chlamydia, and syphilis, during the
12 months following sexual assaults that pose a risk of transmission, and the cost of a counseling session by a
medically trained professional on the accuracy of such tests and the risk of transmission of sexually transmitted
diseases to the victim as the result of the assault. A victim may waive anonymity and confidentiality of any tests paid
for under this section. (8) A responsible official shall provide the victim with general information regarding the
corrections process, including information about work release, furlough, probation, and eligibility for each.
“(d) No cause of action or defense. This section does not create a cause of action or defense in favor of any person
arising out of the failure of a responsible person to provide information as required by subsection (b) or (c) of this
section.
“(e) Definitions. For the purposes of this section – (1) the term “responsible official” means a person designated
pursuant to subsection (a) of this section to perform the functions of a responsible official under that section; and (2)
the term “victim” means a person that has suffered direct physical, emotional, or pecuniary harm as a result of the
commission of a crime, including – (A) in the case of a victim that is an institutional entity, an authorized
representative of the entity; and (B) in the case of a victim who is under 18 years of age, incompetent, incapacitated, or
deceased, one of the following (in order of preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v)
a sibling; (vi) another family member; or (vii) another person designated by the court”).
13 See, in the 104th Congress: S.J.Res. 52, S.J.Res. 65, H.J.Res. 173, and H.J.Res. 174; A Proposed Constitutional
Amendment to Establish a Bill of Rights for Crime Victims: Hearing Before the Senate Comm. on the Judiciary, 104th
Cong., 2d Sess. (1996)—in 105th Congress: S.J.Res. 6, S.J.Res. 44, H.J.Res. 71, and H.J.Res. 129; S.Rept. 105-409
(1998); Proposals to Provide Rights to Victims of Crime: Hearing Before the House Comm. on the Judiciary, 105th
Cong., 1st Sess. (1997); A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the Senate
Comm. on the Judiciary, 105th Cong., 1st Sess. (1997)—in the 106th Congress: S.J.Res. 3, and H.J.Res. 64; S.Rept. 106-
254 (2000); A Proposed Constitutional Amendment to Protect Crime Victims: Hearing Before the Senate Comm. on the
Judiciary, 106th Cong., 1st Sess. (1999), and H.J.Res. 64, Proposing An Amendment to the Constitution of the United
States to Protect the Rights of Crime Victims: Hearing Before the Subcommittee on the Constitution of the House
Judiciary Comm., 106th Cong., 2d Sess. (2000);—in the 107th Congress: S.J.Res. 35, H.J.Res. 88, and H.J.Res. 91;
(continued...)
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passage, sponsors opted for a statutory substitute,14 which unlike the “best-efforts” preexisting
statute, included enforcement mechanisms. The legislation, S. 2329—the Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Right Act—was
introduced in Senate on April 21, 2004, and passed the following day.15 The House merged an
amended version of S. 2329 with DNA proposals in H.R. 5107, the Justice for All Act, which it
passed on October 6, 2004.16 The Senate passed H.R. 5107 unamended three days later,17 and the
President signed it on October 30, 2004.18 The implementing amendments to the Federal Rules of
Criminal Procedure, including Rule 60 (victims’ rights), became effective on December 1, 2008.19
Who Is a Victim?
For the purposes of this chapter, the term “crime victim” means a person directly and
proximately harmed as a result of the commission of a Federal offense or an offense in the
District of Columbia. In the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the
representatives of the crime victim’s estate, family members, or any other persons appointed
as suitable by the court, may assume the crime victim’s rights under this chapter, but in no
event shall the defendant be named as such guardian or representative. 18 U.S.C. 3771(e).20
The definition of “victim,” the question of deciding who should be afforded rights and who
should not be, was one of the issues that over the years fired debate during consideration of
proposals to amend the United States Constitution. The amendment proposals in the 108th
Congress (S.J.Res. 1/H.J.Res. 48) opted not to include a specific definition of victim, but referred
to the rights as those of the “victims of violent crimes.” In doing so, they excluded the victims of
fraud, regardless of how extensive or devastating the crime, a result some Members considered
unsatisfactory.21
(...continued)
Federal Victims Rights Amendment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong., 2d Sess. (2002)(House Hearing IV); S.J.Res. 35, The Crime Victims’ Rights Amendment:
Hearing Before the Subcomm. on Constitution, Federalism, and Property Rights of the Senate Comm. on the Judiciary,
107th Cong., 2d Sess. (2002)(Senate Hearing IV); and—in the 108th Congress: H.J.Res. 10, H.J.Res. 48, S.J.Res. 1;
S.Rept. 108-191; Crime Victims Constitutional Amendment: Hearing Before the Subcomm. on the Constitution of the
House Comm. on the Judiciary , 108th Cong., 1st Sess. (2003)(House Hearing V); A Proposed Constitutional
Amendment to Protect Crime Victims, S.J.Res. 1: Hearing Before the Senate Comm. on the Judiciary; 108th Cong., 1st
Sess. (2003)(Senate Hearing V).
14 “[R]ecognizing that we didn’t have the 67 votes necessary for a constitutional amendment – both Senator Kyl and I,
as well as the victims and their advocates, decided that we should compromise. There are Members of this body who
very much want a statute. There are Members of this body who very much want a constitutional amendment. We have
drafted a statute which we believe is broad and encompassing....” 150 Cong.Rec. S4261 (daily ed. April 22,
2004)(remarks of Sen. Feinstein); see also, Id. at S4266 (“Knowing we would not have the 67 votes to pass it, we
decided it was time to get something tangible in statute to protect the rights of victims”)(remarks of Sen. Kyl).
15 150 Cong. Rec. S4279 (daily ed. April 22, 2004).
16 150 Cong. Rec. H8208-209 (daily ed. Oct. 6, 2004). See also, H.Rept. 108-711(2004).
17 150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004).
18 P.L. 108-405, 118 Stat. 2260 (2004).
19 Text of Rule 60 is appended.
20 The Federal Rules of Criminal Procedure adopt the same definition by cross reference, F.R.Crim.P. 1(b)(11).
21 Cf., S.Rept. 105-409 (additional views of Sen. Hatch); Barnard, Allocution for Victims of Economic Crimes, 77
NOTRE DAME LAW REVIEW 39 (2001).
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Section 3771 suffers no such limitation.22 Instead, it borrowed language from the federal
restitution statutes, 18 U.S.C. 3663 and 18 U.S.C. 3663A, which, then as now, defines a victim as
“a person directly and proximately harmed as a result of the commission of an offense for which
restitution may be ordered.”23 Section 3771 also adopted the restitution provisions’
representational language.24 Section 3771, however, has nothing comparable to explicit provision
for schemes or conspiracies found in the restitution statutes.25 And Section 3771 is more
expansive. It encompasses all federal crimes and those of the District of Columbia, 18 U.S.C.
3771(e), while the reach of Section 3663 and Section 3663A is more limited.26 These differences
notwithstanding, the courts seem likely to consult their experience under the restitution statutes
when construing Section 3771’s definition of victim.27
Persons
Section 3771 and the restitution statutes speak of victims who are “persons” (“‘crime victim’
means a person”). Although in common parlance, this might be thought to restrict the class of
victims to human beings, general usage within the United States Code is to the contrary. Unless
the context suggests another intent, the word “person” as used in the United States Code is
22 Section 3771 applies to both violent and nonviolent crimes, United States v. Degenhardt, 405 F.Supp.2d 1341, 1342-
345 (D. Utah 2005). Past proposed constitutional amendments sometimes referred to the victims of felonies, e.g.,
H.J.Res. 64 (105th Cong.), H.J.Res. 173 (104th Cong.). The fact that Section 3771 simply refers to “crime” indicates that
the section is intended to apply to the victim of any federal crime, regardless of its classification. The issue of whether
misconduct that is punishable only with a monetary sanction should be considered a crime for purposes of Section 3771
may be more problematic.
23 18 U.S.C. 3663(a)(2), 3663A(a)(2).
24 Both Section 3663 and Section 3663A provide, “In the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime
victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime
victim’s rights under this chapter, but in no event shall the defendant be named as such guardian or representative.”
25 “For the purposes of this chapter, the term ‘crime victim’ means a person directly and proximately harmed as a result
of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves
an element of a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a crime victim who is under 18
years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of
the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the
crime victim’s rights under this chapter, but in no event shall the defendant be named as such guardian or
representative,” 18 U.S.C. 3663(a)(2), 3663A(a)(2)(language that does not appear in Section 3771 in italics).
26 Section 3663A covers any federal offense which is (A) “(i) a crime of violence, as defined in section 16; (ii) an
offense against property under this title, or under section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)),
including any offense committed by fraud or deceit; or (iii) an offense described in section 1365 (relating to tampering
with consumer products); and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary
loss,” 18 U.S.C. 3663A(c)(1).
Section 3663 covers any federal offense, not covered by Section 3663A, which is “an offense under this title [i.e., 18
U.S.C.], [under] 21 U.S.C. 841, 848(a), 849, 856, 861, 863 [relating to drug trafficking], or under section 5124, 46312,
46502, or 46504 of title 49 [relating aircraft offenses],” 18 U.S.C. 3663(a)(1)(A).
27 United States v. Atlantic States Cast Iron Pipe Co., 612 F.Supp.2d 453, 462 (D.N.J. 2009)(“This Court is of the view
that ... the definition of ‘victim’ under CVRA [18 U.S.C. 3771] will be interpreted consistent with existing and
evolving case law under the VWPA and MVRA [the restitution statutes, 18 U.S.C. 3663, 3663A]”); Cassell,
Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims’
Rights Act, 2005 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 835, 857.
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understood to “include corporations, companies, associations, firms, partnerships, societies, and
joint stock companies as well as individuals.”28
Earlier restitution cases rejected arguments that only human beings could be “victims.”29 Perhaps
because the question is considered settled, the argument has disappeared, and later courts have
regularly found restitution appropriate for legal entities without commenting upon their want of
human status.30 Thus far, the question of whether a legal entity may be considered a person for
purposes of Section 3771 has been assumed or at least not be addressed in an officially reported
case.31
The universal definition of person in 1 U.S.C. 1 does not mention governmental entities, but they
too have been found qualified for restitution under the appropriate circumstances.32 The 2011 AG
Guidelines take the position that governmental entities are not eligible for “court enforceable
rights,” but may be entitled to restitution.33
Directly and Proximately Harmed
An earlier version of the restitution statutes authorized restitution for injuries and losses resulting
from certain offenses but made no mention of direct and proximate harm.34 “This [earlier]
language suggest[ed] persuasively that Congress intended restitution to be tied to the loss caused
by the offense of conviction,” the Supreme Court said in Hughey v. United States.35 The
implication might have been that restitution was appropriate were the loss would not have
occurred but for the offense conviction. Subsequent amendments both expanded and contracted
on that implication. Not all persons who suffer a loss as the direct result of an offense are
28 1 U.S.C. 1. United States Department of Justice, Attorney General Guidelines for Victim and Witness Assistance, 8
(2011 ed.)(2011 AG Guidelines).
29 United States v. Kirkland, 853 F.2d 1243, 1246 (5th Cir. 1988); United States v. Sunrhodes, 831 F.2d 1537, 1545-546
(10th Cir. 1987); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir. 1986).
30 E.g., United States v. Davenport, 445 F.3d 366, 374 (4th Cir. 2006)(credit card company); United States v.
Washington, 434 F.3d 1265, 1268-270 (11th Cir. 2006) (condominium association).
31 United States v. Rubin, 558 F.Supp.2d 411, 418 (E.D.N.Y. 2008)(“The government does not contest that movants
[RJP Investment Co., LLC, and Dixie Chris Omni, LLC ] are ‘victims’ for purposes of the CVRA, but rightly notes the
existence of significant questions about whether and when movants acquired vindicable rights under the Act”); In re
Local #46 Metallic Lathers Union, 568 F.3d 81, 85-7 (2d Cir, 2009)(union local was not a victim for purposes Section
3771, because the injury it claimed was not “directly and proximately” caused by the offense to which the defendant
pled guilty).
32 United States v. Ekanem, 383 F.3d 40, 42-3 (2d Cir. 2004)(“But the meaning of ‘victim’ under MVRA [the
Mandatory Victims Restitution Act, 18 U.S.C. 3663A], contrary to defendant’s position is not controlled by the default
definition of ‘person’ in the Dictionary Act – which excludes the Government – because that definition does not apply
if the ‘context [of a particular statute] indicates otherwise,’ 1 U.S.C. 1.... [W]e conclude that the context of MVRA
indicates otherwise, so that the term ‘victim’ as used in that statute is not limited by the default definition of ‘person’ in
the Dictionary Act but instead includes the Government”); see also United States v. Washington, 434 F.3d 1265, 1268-
270 (11th Cir. 2006)(upholding a restitution order in favor of a police department whose vehicles a bank robber
damaged in his attempted getaway); United States v. Phillips, 367 F.3d 846, (9th Cir. 2004)(Environmental Protection
Agency may be the qualified beneficiary of a restitution order); United States v. Caldwell, 302 F.3d 399, 419-20 (5th
Cir. 2002) (State of Mississippi may entitled to an award of restitution).
33 2011 AG Guidelines, 12.
34 18 U.S.C. 3579, 3580 (1982 ed.).
35 495 U.S. 411, 418 (1990).
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considered victims for purposes of the restitution statutes. The loss must be directly and
proximately caused by the offense. This means:
[f]irst: [r]estitution should not be ordered in respect to a loss which would not have occurred
regardless of the defendant’s conduct [i.e., losses that are not direct]. Second: Even if but for
causation is acceptable theory, limitless but for causation is not. Restitution should not lie if
the conduct underlying the offense of conviction is too far removed, either factually or
temporally, from the loss [i.e., if the offense is not proximate to the loss].36
A loss caused in part by intervening circumstances cannot be said to have been directly and
proximately caused by the offense of conviction, unless the intervening cause is related to or a
foreseeable consequence of that offense of conviction.37 But the restitution statutes enlarge the
victim definition by including those directly harmed by an offense one of whose elements is a
“scheme, conspiracy or pattern.”38 Section 3771 features the restitution statutes’ “direct and
proximate” cause language, without the “scheme, conspiracy, or pattern” component.
The courts to date have indicated that the phrase “directly and proximately harmed” used in
Section 3771 to describe victims “encompasses the traditional ‘but for’ and proximate cause
analyses.”39
Crime of Conviction
Under Section 3663 and Section 3663A, restitution is only available for harm related conduct
underlying the crime of conviction.40 Victims of crimes, other than those for which the defendant
36 United States v. Fallon, 470 F.3d 542, 549 (3d Cir. 2005) see also, United States v. Robertson, 493 F.3d 1322, 1334
(11th Cir. 2007)(internal quotation marks and citations omitted) (“We have never defined the phrase ‘directly and
proximately,’ but we agree with the definitions that our sister circuits have adopted. The government must show not
only stat a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also
that the causal connection between the conduct and the loss is not too attenuated (either factually or temporally)”);
United States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002).
37 United States v. Peterson, 538 F.3d 1064, 1075 (9th Cir. 2008)(“Defendant’s conduct need not be the sole cause of
the loss, but any subsequent action that contributes to the loss, such as an intervening cause must be directly related to
the defendant’s conduct. We have approved restitution awards that included losses at least one step removed from the
offense conduct itself, but the causal chain may not extend so far, in terms of the facts or the time span, as to become
unreasonable. The main inquiry for causation in investigation cases is whether there was an intervening cause, and if
so, whether this intervening cause was directly related to the offense”)(internal citations and quotation marks omitted);
United States v. Robertson, 493 F.3d at 1334 (“[W]e agree with the definitions that our sister circuits have adopted ...
see also United States v. Donaby, 349 F.3d 1046, 1054 (7th Cir. 2003)(‘victim under the Restitution Act harmed by
likely and foreseeable outcome of the crime’)”).
38 18 U.S.C. 3663(a)(2)(emphasis added)(“For the purposes of this section, the term “victim” means a person directly
and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in
the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern ...”); 18 U.S.C.
3663A(a)(2)(same).
39 In re Rendon-Galvis, 564 F.3d 170, 175 (2d Cir. 2009), citing In re Antrobus, 519 F.3d 1123, 1126 (10th Cir. 2008)
(Tymkovich, J., concurring), and United States v. Sharp, 463 F.Supp.2d 556, 567 (E.D.Va. 2006); see also, In re
Fisher, 649 F.3d 401, 402-403 (5th Cir. 2011); In re McNulty, 597 F.3d 344, 350-52 (6th Cir. 2010); United States v.
Atlantic States Cast Iron Pipe Co., 612 F.Supp.2d 453, 469 (D.N.J. 2009).
40 In re Local #46 Metallic Lathers Union, 568 F.3d 81, 85-6 (2d Cir. 2009); United States v. Stennis-Williams, 557
F.3d 927, 930 (8th Cir. 2009); United States v. Arledge, 553 F.3d 881, 898 (5th Cir. 2008).
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is convicted, are not entitled to restitution even if they were victims of offenses that were initially
charged with the crime of conviction or are indisputably related to the crime of conviction.41
The corresponding aspect of Section 3771 is only slightly different. It is focused on the activities
and proceedings involving the victimizing offense before and after conviction; the restitution
sections are focused on the victimizing offense of conviction.42 They are similar, however, in that
persons—harmed by crimes other than those of conviction in the case of the restitution statutes or
other than those which are the subject of a particular proceeding in the case of Section 3771—are
unlikely to be able to claim the benefits of a victim. In particular in both instances, individuals
may lose or never acquire the benefit of victim status during the course of criminal proceedings,
if charges covering the crimes of which they are the victim are dropped, dismissed, or never filed,
even though related crimes are or continue to be prosecuted.43 Nevertheless, victims of a clearly
41 In re Local #46 Metallic Lathers Union, 568 F.3d at 86-7 (union whose members were paid “off the books” using
laundered money and which would have received dues check-offs had those members been paid above board was not a
victim of the employer convicted of money laundering); United States v. Rand, 403 F.3d 489, 493 (7th Cir. 2005)
(identity thief could only be required to make restitution to those victims covered by his plea agreement); United States
v. Randle, 324 F.3d 550 (7th Cir. 2003)(defendant charged with defrauding three victims could only be ordered to pay
restitution to the victims covered by his plea agreement); United States v. Elias, 269 F.3d 1003, 1021-22(9th Cir. 2001)
(defendant convicted a making a false statement concerning his handling of hazardous waste could not be ordered to
pay restitution to a victim harmed by exposure to the waste); cf., United States v. Inman, 411 F.3d 591, 595 (5th Cir.
2005)(defendant convicted fraudulent use of his employer’s credit card could not be ordered to make restitution for
credit card charges incurred prior to the time covered by his indictment and conviction).
42 United States v. Stewart, 552 U.S. 1285, 1288-289 (11th Cir. 2008)(“The CVRA defines crime victim as any ‘person
directly and proximately harmed as a result of the commission of a Federal offense.’ To determine a crime victim, then,
first we identify the behavior constituting ‘commission of a Federal offense.’ Second, we identify the direct and
proximate effects of that behavior on parties other than the United States.... The CVRA ... does not limit the class of
crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the
charging document”).
43 Consider United States v. Turner, 367 F.Supp.2d 319, 326-27 (E.D.N.Y. 2005)(parallel citations omitted)(“While the
offense charged against a defendant can serve as a basis for identifying a ‘crime victim’ as defined in the CVRA, the
class of victims with statutory rights may well be broader. Specifically, courts must decide whether the CVRA accords
rights to persons harmed by any uncharged criminal conduct attributed to the defendant.... In this regard, the usual
methods of determining legislative intent produce inconsistent results. The law’s sponsors explicitly advocated such a
broad reading of the statute in the Senate floor debate. As Senator Kyl explained, subsection (e) employs ‘an
intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they
are the victim of the count charged.’ Senate Debate at [150 Cong. Rec.] S4270 (statement of Sen. Kyl)(emphasis
added); id. (statement of Sen. Feinstein agreeing with the same). On the other hand, the full Congress passed the bill
knowing that similar language in an earlier victims’ rights bill had been interpreted not to refer to uncharged conduct.
In Hughey v. United States, 495 U.S. 411 (1990), the Supreme Court held that the 1982 Victim Witness Protection Act,
18 U.S.C. §3663(a)(2), authorized restitution only for loss caused by the specific conduct which forms the basis for the
offense of conviction. Since the statute at issue in Hughey and the CVRA use similar definitions of ‘victim,’ it appears
that the same reasoning would exclude victims of uncharged conduct from the class of those entitled to participatory
rights under the new law. The latter view is bolstered by the House report on CVRA which explicitly noted that 18
U.S.C. 37871(a)(6) ‘makes no changes in the law with respect to restitution.’ H.Rept. 108-711 (2004) ... I will presume
that any person whom the government asserts was harmed by conduct attributed to a defendant, as well as any person
who self-identifies as such, enjoys all of the procedural and substantive rights set forth in §3771” ); see also, 2011 AG
Guidelines, 8 (“[Crime Victims’ Rights Act (CVRA)] rights attach when criminal proceedings are initiated by
complaint, information, or indictment. If the defendant is convicted, CVRA rights continue until criminal proceedings
have ended. For example, CVRA rights continue through any period of incarceration and any term of supervised
release, probation, community correction, alternatives to incarceration, or parole. Absent a conviction, a victim’s
CVRA rights cease when charges pertaining to that victim are dismissed either voluntarily or on the merits, or if the
government declines to bring formal charges after filing a complaint”).
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identifiable crime are entitled to rights notwithstanding the absence of a charge or even a
suspect.44
Family of Victims
Like the restitution statutes, Section 3771 states that in the case of a deceased victim, “the legal
guardians of the crime victim or the representatives of the crime victim’s estate, family members,
or any other persons appointed as suitable by the court, may assume the crime victim’s rights.”
This suggests that family members of the deceased are not themselves considered victims. It
implies that one of the parents and other relatives of an adult homicide victim may assume the
victim’s rights, but otherwise are entitled to none of the rights found in Section 3771.
The restitution cases leave the question unresolved.45 Early case law construing Section 3771
seems to leave the question unsettled. In discussing whether court appointment of a representative
for a deceased “actual” victim was necessary, one court appears to have assumed that family
members of a homicide victim are not themselves victims per se:
Persons Other Than Actual Victims ... Where the actual victim is deceased, a minor,
incompetent, or incapacitated, “the legal guardians of the crime victim or the representatives
of the crime victim’s estate, family members, or any other persons appointed as suitable by
the court, may assume the crime victim’s rights under this chapter.” 18 U.S.C. 3771(e). The
provision appears to mean that where a surrogate is required and one is available, that person
will automatically “assume the crime victim’s rights” without the need for any action by the
court. It is only where no such person can be identified – or, presumably, where any such
person is unwilling or unable to assume that role – that a court need consider appointing a
suitable surrogate. United States v. Turner, 367 F.Supp.2d 319, 329 (E.D.N.Y. 2005).
A second court conducting a trial for the murders of Gregory Nicholson; Terry DeGeus; and Lori,
Amber and Kandi Duncan, observed:
44 E.g., 18 U.S.C. 3771(a)(8)(The right to be treated with fairness and with respect for the victim’s dignity and privacy);
In re Dean, 527 F.3d 391, 394 (5th Cir. 2008)(recognizing the right to confer prior to the filing of charges); Does v.
United States, 817 F.Supp.2d 1337 (S.D. Fla. 2011)(“The United States argues that ... the CVRA applies only after
formal charges are filed. The Court finds this argument unavailing”).
45 United States v. Wilcox, 487 F.3d 1163, 1176-178 (8th Cir. 2007)(restitution may not include income lost by the
mother of a rape victim under the theory that the child’s mother was likewise a victim of the crime, but may include
reimbursement to the mother for the cost of transporting the child to receive crime-necessitated medical treatment);
United States v. Hayward, 359 F.3d 631, 642 (3d Cir. 2004)(upholding a restitution order for parents whose children
had been transported to London for illicit sexual purposes with the terse observation that the parents “incurred
reasonable costs in obtaining the return of their victimized children from London and in making their children available
to participate in the investigation and trial. The restitution order will therefore be affirmed”); see also United States v.
Douglas, 525 F.3d 225, 254 (2d Cir. 2008)(affirming a restitution order to compensate the father of a murdered victim
for the annual leave the father used to assist in the investigation and attend court proceedings. Before rejecting the
defendant’s contention that annual leave could not be considered lost income, the court observed without further
comment that the defendant had “conceded that Morgan Sr. clearly is a victim within the meaning of the MVRA”);
United States v. Dayea, 73 F.3d 229, 232 (9th Cir. 1995) (wife of a manslaughter victim was not entitled to restitution
for her husband’s lost income because she was not physically injured)(The restitution statute authorizes awards for
victims who suffered physical injuries and those who suffer damage to or loss of property, 18 U.S.C. 3663. Had the
court considered the widow a victim in her husband’s killing she would presumably have been eligible for restitution
for lost income); cf., United States v. Fountain, 768 F.2d 792, 801 (7th Cir. 1985)(restitution order for the lost wages to
the estate of homicide victim is proper).
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In this case, the government has identified the following “victim witnesses”: Terry DeGeus’s
father, mother, sister, two brothers, ex-wife, and daughter; Lori Duncan’s father, mother,
brother and sister, who are, respectively Kandi and Amber Duncan’s grandfather,
grandmother, uncle and aunt; Kandi and Amber Duncan’s father, other grandfather, and
other grandmother; and Greg Nicholson’s ex-wife, who is the mother of his children, and
two daughters. Johnson does not dispute, and the court expressly finds, that each of these
persons is either “a person directly and proximately harmed as a result of the commission of”
one or more of the federal offenses charged against Johnson, that is, the murders of Greg
Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, or Terry DeGeus, or that, owing to
the deaths of these alleged murder victims in this case, the murder victims’ family members
identified by the government are “representatives of the crime victim’s estate” or “family
members.” Therefore, these persons qualify for the rights afforded by §3771, United States v.
Johnson, 362 F.Supp.2d 1043, 1055-56 (N.D. Iowa 2005).46
The 2011 AG Guidelines simply paraphrase the statutory language and thus do not weigh in on
the issue.47
Crimes Under What Law
Various past proposed constitutional amendments would have covered the victims of crimes
committed in violation of state law, the United States Code, the Code of Military Justice, the
District of Columbia Code, and/or U.S. territorial codes.48 Section 3771 is more modest. It applies
to the victims harmed as a result of “the commission of a Federal offense or an offense in the
District of Columbia.”49 It clearly does not apply to the victims of state crimes, unless the
underlying misconduct also violates federal or D.C. law. The specific inclusion of only the
District of Columbia in Section 3771 in light of the specific inclusion of the territories in some of
the past proposals to amend the Constitution might be seen as evidence that Congress did not
intend Section 3771 to cover victims of crimes committed in violation of the various territorial
codes, which often have their own extensive victims’ rights provisions.50 By the same token, past
attention to the victims of military offenses may suggest that Section 3771 is not intended to
cover the victims of violations of the Code of Military Justice.51
46 See also, United States v. Marcello, 370 F.Supp.2d 745, 746-50 (N.D.Ill. 2005)(declining a motion to permit the son
of a homicide victim to make an oral statement (rather than a written statement) at sentencing but treating without
discussion the motion as that of a victim); United States v. Hairson, 888 F.2d 1349, 1355 (11th Cir. 1989)(noting, in
dicta with regard the restitution statute prior to the amendment that limited the restitution to direct and proximate harm,
that in the legislative history the Senate Report, S.Rept. 97-532 at 13 (1982), “states that ... the definition of ‘victims’ is
purposely broad to include indirect victims, such as family members of victims”).
47 2011 AG Guidelines, 8.
48 E.g., S.J.Res. 3 (106th Cong.)(“The rights and immunities established by this article shall apply in Federal and State
proceedings, including military proceedings to the extent that the Congress may provide by law, juvenile justice
proceedings, and proceedings in the District of Columbia and any commonwealth, territory, or possession of the United
States”); H.J.Res. 64 (106th Cong.)(same).
49 Some may consider the inclusion of the District of Columbia something of a curiosity since the D.C. Code already
featured extensive crime victims’ rights provisions, D.C. CODE §§23-1901 to 23-1906. Victims would appear to be free
to claim the rights afforded by either Section 3771 or the D.C. Code provisions.
50 E.g., Guam Code Ann. tit. §§160.10 et seq.; P.R. Laws Ann. tit. 25 §§973 et seq.; V.I. Code Ann. tit. 34 §§201 et
seq.
51 The point may be largely academic since Defense Department Directive 1030.1 (April 13, 2004) is a rough
equivalent of Subsection 3771(a).
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On the other hand, the section apparently covers victims of juvenile delinquency with respect to
misconduct that in the case of an adult offender would have been a violation of federal or D.C.
law, although the availability of particular rights under Section 3771 may depend upon whether
the juvenile proceedings are open or closed.52 Moreover, the 2011 AG Guidelines assert that
federal juvenile delinquency provisions “restrict[] the type of information that may be disclosed
to victims about investigations and proceedings regarding juvenile offenders unless the juvenile
waives the restrictions or has been transferred for criminal prosecution as a adult.”53
The Right to Be Reasonably Protected From the
Accused
The right to be reasonably protected from the accused. 18 U.S.C. 3771(a)(1)54
Section 3771 lists the right to be reasonably protected from the accused first among its victims’
rights. Most of Section 3771’s components can be traced to a comparable provision in the 108th
Congress-proposed constitutional amendments. This one is a little different. The constitutional
amendment proposals spoke of a right to have judicial decisions made with an eye to victim
safety.55 The previous language focused on “adjudicative decisions”; the new language has no
such limitation. The earlier language seemed to impose an obligation to guard against threats to
victim safety, from whatever source; the new language establishes a right to the victim to be
protected against the accused. Use of the term “accused” and portions of the scant legislative
history might be read to imply that the right expires with the conviction of the accused, at which
point he would ordinarily be referred to as the offender.56 Nevertheless, the colloquy on the floor
between two of the principal Senate sponsors ended with the comment that they considered the
term “accused” in 3771 to mean “convicted” as well.57 But earlier in their discussion, they
summarized the right simply using a trial protection example.58
52 United States v. L.M., 425 F.Supp.2d 948, 957 (N.D. Iowa 2006)(denying the motion of the family of a deceased
minor victim to attend the hearing held to determine whether to transfer the juvenile for trial as an adult based on the
court’s decision to close the proceedings to the public).
53 2011 AG Guidelines, 13 (referring to the Federal Juvenile Delinquency Act, 18 U.S.C. 5031-5042).
54 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding provision.
55 S.J.Res. 1 (108th Cong.) (“the right to adjudicative decisions that duly consider the victim’s safety”); H.J.Res. 48
(108th Cong.).
56 150 Cong. Rec. S4267 (daily ed. April 22, 2004)(remarks of Sen. Feinstein)(“I would like to turn to the bill itself and
address the first section (a)(1), the right of the crime victim to be reasonably protected. Of course, the Government
cannot protect the crime victim in all circumstances. However, where reasonable, the crime victim should be provided
accommodations such as a secure waiting area, away from the defendant before and after and during breaks in the
proceedings”).
57 150 Cong.Rec. S4270 (daily ed. April 22, 2004)(remarks of Sens. Feinstein and Kyl) (“One final point. Throughout
this act, reference is made to the ‘accused.’ Would the Senator also agree that it is our intention to use this word in the
broadest sense to include both those charged and convicted so that the rights we establish apply throughout the criminal
justice system?
“Mr. KLY. Yes, that []is my understanding”).
58 150 Cong.Rec. S4267 (daily ed. April 22, 2004)(remarks of Sen. Feinstein), quoted supra footnote 56.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771
The clause appears to have been the subject of little judicial construction.59 One court understood
the term “accused” to mean that the right does not attach until a person has been “accused by
criminal complaint, information or indictment.”60 A second court observed that “[r]egardless of
what this right might entail outside the bail context, it appears to add no new substance to the
protection of crime victims afforded by the Bail Reform Act, which already allows a court to
order reasonable conditions of release or the detention of an accused defendant to ‘assure ... the
safety of any other person.’” (18 U.S.C. 3142(c)(1)).61 As will be noted below, victims elsewhere
in Section 3771 are entitled to notice and to be heard with respect to the release of an accused.62
Moreover, the protection clause provided the stimulus for an amendment to Rules 12.1 and
17(c)(3) of the Federal Rules of Criminal Procedure relating to the disclosure of the addresses and
telephone numbers of government witnesses63 and to subpoenas for personal or confidential
information about victims,64 respectively.
Notice
The right to reasonable, accurate, and timely notice of any public court proceeding, or any
parole proceeding, involving the crime or of any release or escape of the accused. 18 U.S.C.
3771(a)(2).
Officers and employees of the Department of Justice and other departments and agencies of
the United States engaged in the detection, investigation, or prosecution of crime shall make
their best efforts to see that crime victims are notified of, and accorded, the rights described
in subsection (a) ... Notice of release otherwise required pursuant to this chapter shall not be
given if such notice may endanger the safety of any person. 18 U.S.C. 3771(c)(1),(3).65
In a case where the court finds that the number of crime victims makes it impracticable to
accord all of the crime victims the rights described in subsection (a), the court shall fashion a
reasonable procedure to give effect to this chapter that does not unduly complicate or
prolong the proceedings. 18 U.S.C. 3771(d)(2).
59 United States v. Rubin, 558 F.Supp.2d 411, 420 (E.D.N.Y. 2008)(“In the only known case to interpret this provision
...”), citing United States v. Turner, 367 F.Supp.2d 319 (E.D.N.Y. 2005).
60 United States v. Rubin, 558 F.Supp.2d at 420. Although the victims in Rubin were concerned about the safety of their
property rather than of their person, the court made no effort to suggest that the right was limited to protection from
physical harm.
61 United States v. Turner, 367 F.Supp.2d at 332.
62 18 U.S.C. 3771(a)(2), (4).
63 F.R.Crim.P. 12.1(b)(1)(B)(“If the government intends to rely on a victim’s testimony to establish that the defendant
was present at the scene of the alleged offense and the defendant establishes a need for the victim’s address and
telephone number, the court may: (i) order the government to provide the information in writing to the defendant or the
defendant’s attorney; or (ii) fashion a reasonable procedure that allows preparation of the defense and also protects the
victim’s interests”).
64 F.R.Crim.P. 17(c)(3)(“After a complaint, indictment, or information is filed, a subpoena requiring the production of
personal or confidential information about a victim may be served on a third party only by court order. Before entering
the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the
victim can move to quash or modify the subpoena or otherwise object”).
65 The corresponding provision in Rule 60(a)(1) of the Federal Rules of Criminal Procedure provides, “The government
must use its best efforts to give the victim reasonable, accurate, and timely notice of any public court proceeding
involving the crime.”
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Notice allows victims to assert their rights, facilitates their participation, assures them that justice
is being done, and affords them the opportunity to take protective measures when the accused is
at large.66 Section 3771’s notification rights are subject to several limitations, some explicit, some
implicit. The section explicitly excuses a failure to notify victims of the release of an accused
when to do so might be dangerous,67 and it permits the courts to seek reasonable accommodations
when the number of victims in a given case precludes strict compliance with the section’s
demands.68
The implicit limitation is constitutional. Under some circumstances, the manner in which notice is
provided may intrude upon the rights of the accused to an impartial jury trial or other
constitutional rights of the accused.69 Under such circumstances, the statutory rights of the victim
must yield.
There is also an omission. Section 3771 does not give victims the right to notification of their
rights; it merely imposes an obligation upon government officials to “make their best efforts to
see that crime victims are notified” of them.70
This notification of the rights was a component of the early constitutional amendment
proposals,71 which followed the lead of several state constitutions and statutes.72 It was originally
seen as a victim’s counterpart to the Miranda warnings enjoyed by an accused and as a
prerequisite if the proposed amendments were to function effectively.73 There were objections,
66 150 Cong. Rec. S4267-268 (daily ed. April 22, 2004)(remarks of Sens. Kyl and Feinstein).
Notice also allows victims to evaluate whether to begin civil proceedings against those associated with an offense but
who may not have been prosecuted, see e.g., United States v. Crompton Corp., 399 F.Supp.2d 1047, 1051 (N.D.Cal.
2005)(“Defendant requests redaction of [Defendant’s CEO] Calarco’s name because it wants to shield his identity from
civil plaintiffs that have sued Defendant in dozens of lawsuits across the country.... [R]edacting Calarco’s name would
violate the Crime Victims’ Rights Act. Here, the plaintiffs in the additional civil lawsuits filed against Defendant are
those who were directly and proximately harmed as a result of the commission of the antitrust violation. Therefore, the
Court should be particularly sensitive to ensuring they are given full access to the proceedings and the Plea Agreement.
Accordingly, the Court finds that redacting Calcarco’s name from the Plea Agreement would violate the Crime
Victims’ Rights Act”).
67 18 U.S.C. 3771(c)(3).
68 18 U.S.C. 3771(d)(2).
69 United States v. Grace, 401 F.Supp.2d 1057, 1063-64 (D.Mont. 2005)(“Most of the statements made by the [Justice
Department Victim Witness] Specialist are probably within the ‘legitimate law enforcement purpose’ exception [of the
local rule barring pretrial publicity] because there were made in the course of fulfilling of DOJ’s duties under the
Justice For All Act. This is so even if the statements should not have been made in the manner they were. Although
these statements were made in public and disseminated in at least one local newspaper, they relate to topics that the
DOJ is arguably required to address under the Justice For All Act, including a right to have timely notice of
proceedings”). The court subsequently denied the defendant’s motion for a change of venue predicated upon prejudicial
pretrial publicity, United States v. Grace, 408 F.Supp.2d 998 (D.Mont. 2005). In doing so, it found it unnecessary to
consider the government’s argument that the interests of the victim community should be counted against the motion
because the court did not “believe community interests warrant separate consideration beyond the Ninth Circuit’s
presumption against transfer of venue based on presumed prejudice,” 408 F.Supp.2d at 1020-21.
70 18 U.S.C. 3771(c)(1).
71 E.g., S.J.Res. 65 (104th Cong.); H.J.Res. 71 (105th Cong.); S.J.Res. 3 (106th Cong.).
72 E.g., ARIZ.CONST. art. 2, §2.1(12); IND.CODE ANN. §35-40-5-9; LA.CONST. art.1, §25; MD.DECL.OF RTS. art.47(b);
MASS.GEN.LAWS ANN. ch.258B, §3; N.J.STAT.ANN. §52:4B-42; ORE.CONST. art.I, §42; TENN.COST. art.I, §35;
WYO.STAT. §1-40-203.
73 “Victims’ rights are of little use if victims remain unaware of them. Since victims deserve the eight basic rights [of
the amendment], they should be informed about those rights. Not only does this serve to ensure that victims can
exercise their rights, but it can even improve the functioning of the criminal justice process. Victims who have been
(continued...)
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however, that the warnings were out of character with the other rights conveyed by the
Constitution and might pose implementation problems—objections that apparently ultimately
prevailed,74 since the provision was not included in later proposals.75
In this respect and others Section 3771’s notice clause, 18 U.S.C. 3771(a)(2), is essentially the
same as its forerunner in the 108th Congress resolutions to amend the Constitution.76 It differs
slightly in that it makes special provisions for parole proceedings and insists that notice be
“accurate” as well as “reasonable and timely.” Moreover, unlike its predecessors, the clause is
accompanied by language that imposes an obligation on the government to advise victims of their
rights under the section and to inform them that they may consult an attorney concerning those
rights.77
The notice clause has several distinctive features:
• the notice rights apply only with respect to public court proceedings and parole
proceedings;
• the rights attach to those proceedings involving the crime but not necessarily to
all those related to the crime;
• victims are entitled to reasonable, accurate and timely notice; and
• victims are entitled to notice of the release or escape only of the accused.
(...continued)
informed about their role in the process are in a better position to cooperate with police, prosecutors, and courts to bring
about a proper resolution of the case. Victims deserve appropriate notice of their rights in the process,” S.Rept. 106-254
at 26.
74 “I have significant concerns about the necessity and wisdom of ... providing that covered victims shall have right ‘to
reasonable notice of the rights established’ by the amendment. No other constitutional provision mandates that citizens
be provided notice of the rights vested by the Constitution – not even the court-created Miranda warnings are
constitutionally required. In an analogous context, Justice O’Connor noted that ‘the free exercise clause is written in
terms of what the Government cannot do to the individual, not in terms of what the individual can exact from the
Government,’ This clause in the proposed victims’ rights amendment would create an affirmative duty on the
Government to provide notice of what rights the Constitution provides, turning this formulation on its head.
“Moreover, I do not believe that sufficient consideration has been given to the practical aspects of the requirement.
Which governmental entity would be required to provide the notice? Would it be the police, when taking a crime
report? The prosecutor prior to seeking an indictment or filing an information? Or perhaps the court at some other stage
in the process? At what point would the right attach – when the crime is committed? When an arrest is made? ... Does
the term presume that the government entity providing notice must have assimilated the Supreme Court’s latest
jurisprudence interpreting victims’ rights when giving notice? . . . .
“Finally, Congress will be empowered ... to enforce its provisions presumably including the question of how
governmental entities must provide victims notice. Will this permit Congress to micromanage the policies and
procedures of our state and local law enforcement agencies, prosecutors, and courts? I believe greater consideration
must be given to these questions before a right to notice of the rights guaranteed by the amendment is included in the
Constitution,” S.Rept. 105-409 at 43-4 (additional views of Sen. Hatch).
75 E.g., S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
76 Id.
77 “(1) Government. Officers and employees of the Department of Justice and other departments and agencies of the
United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that
crime victims are notified of, and accorded, the rights described in subsection (a). (2) Advice of attorney. The
prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the
rights described in subsection (a). (3) Notice. Notice of release otherwise required pursuant to this chapter shall not be
given if such notice may endanger the safety of any person,” 18 U.S.C. 3771(c).
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Public Proceedings
The public proceedings limitation has been a feature of the victims’ rights proposals for some
time. Speaking of the past constitutional proposals, Senate Judiciary Committee reports pointed
out that:
Victims’ rights under this provision are also limited to ‘public proceedings.’ Some
proceedings, such as grand jury investigations, are not open to the public and accordingly
would not be open to the victim. Other proceedings, while generally open, may be closed in
some circumstances. For example, while plea proceedings are generally open to the public, a
court might decide to close a proceeding in which an organized crime underling would plead
guilty and agree to testify against his bosses. See 28 C.F.R. 50.9. Another example is
provided by certain national security cases in which access to some proceedings can be
restricted. See ‘The Classified Information Procedures Act’ 18 U.S.C. App.3. A victim
would have no special right to attend. The amendment works no change in the standards for
closing hearings, but rather simply recognizes that such nonpublic hearings take place.
S.Rept. 108-191 at 34; see also, S.Rept. 106-254 at 30, S.Rept. 105-409 at 25.
When the proceedings are closed at the discretion of the court, however, the presence of the
statutory rights may reinforce an inclination to nevertheless approve victim notification of their
existence and outcome.78
Parole Proceedings
Congress abolished parole for those convicted of federal crimes committed after November 1,
1987, P.L. 98-473, 98 Stat. 2027 (1984). Parole is included in the sentencing regime relating to
crimes committed in the District, D.C.CODE §§24-401 to 24-468.
Involving the Crime
The breadth of the phrase “involving the crime” used to describe the public proceedings covered
by the notification right may raise questions too. The phrase clearly contemplates more than trial.
Pretrial and post-trial hearings involving motions to dismiss, to suppress evidence, to change
venue, to grant a new trial, and any of the host of similar proceedings that flow to or from a
criminal trial seem to come within the meaning of the term. The Senate reports’ discussion of
proceedings “related to the crime” in earlier versions, for instance, specifically mention appellate
proceedings, S.Rept. 106-254 at 31, S.Rept. 105-409 at 26.
The same reports indicate that at least at one time covered release proceedings were understood to
include those involving “a release [from custody] of a defendant found not guilty of a crime by
reason of insanity and then hospitalized in custody for further treatment,” Id. at 36 and 30. Crime
relatedness, understood in such terms, would presumably carry victim notice rights to a fairly
wide range of civil and quasi-civil proceedings (e.g., habeas and civil forfeiture proceedings, and
extradition hearings, to name but a few).
78 United States v. L.M., 425 F.Supp.2d 948, 957-58 (N.D. Iowa 2006)(denying victims the right to attend closed
juvenile proceedings, but granting the government’s request to notify them and to unseal the record of the proceedings
except with respect to juvenile’s identification and information that would lead to his identification).
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It may be for this reason that the phrase was changed to “involving the crime,” a phrase that
arguably imposes greater limits on the class of proceedings than might be considered “related,”
although not clearly sufficient to excuse notice of habeas, forfeiture, or the extradition
proceedings.79 Historical proposals were thought to perhaps embody notice rights for the victims
of a defendant’s past crimes, and victims of charges that had been dropped or dismissed, as well
as victims of charges that had resulted in acquittal.80 The change might be considered a
repudiation of that construction as well.
The Senate Judiciary Committee, however, indicated that no such repudiation was intended in the
case of the proposed constitutional amendment and stated simply that the “public proceedings are
those ‘relating to the crime,’” S.Rept. 108-191 at 34. In doing so, it might be thought to have
embraced earlier descriptions of proceedings related to the crime, even though the committee’s
examples in the 108th Congress were much more modest in some places, id. (“the right applies not
only to initial hearings on a case, but also rehearings, hearing at an appellate level, and any case
on a subsequent remand”).81 The colloquy on the floor between Senate sponsors of Section 3771
is somewhat ambiguous but seems to confirm that the proceedings as to which notice is due
include appellate proceedings.82 By confining the proceedings covered to “court” and parole
proceedings, Section 3771 eliminates the speculation previously possible that the rights might be
available in an administrative context such as in administrative immigration proceedings.
Reasonable, Accurate, and Timely Notice
The inclusion of a “timeliness” requirement to the notice right seems significant, because it would
appear to greatly reduce the prospect of “reasonable” but ineffective notice. Yet the committee
report issued after its addition in the constitutional amendment proposal makes no note of it and
79 One witness, however, thought it more likely to confirm an intent to embrace civil proceedings, Senate Hearing V at
162; House Hearing V at 79 (statements of James Orenstein) (“Some public proceedings ‘involving the crime’ are civil
in nature, and normally proceed without any participation by the executive branch of government. Here again, the
change in language from S.J.Res. 3 [106th Cong.] could be problematic: that bill used the phrase ‘relating to the crime’
which the Senate Judiciary Committe noted would ‘typically ... be the criminal proceedings arising from the filed
criminal charges, although other proceedings might also be related to the crime.’ Senate Report at 30-31. A court
interpreting the current bill might conclude that the change from ‘relating to’ to ‘involving’ was intended to make it
easier to apply the Amendment to proceedings outside the criminal context”); see also Senate Hearing IV at 122; House
Hearing IV at 50.
80 “Frequently, criminal defendants are suspected to have committed crimes for which they are never charged or for
which charges are later dropped, even though significant evidence may exist that the defendant did indeed commit the
crime. Do the victims of these crimes have rights under the proposed amendment? If so, are they the same as the rights
of the victims of charged counts or of the defendant? Such victims, of course, would have the same rights to notice and
allocution relating to conditional release, the acceptance of negotiated pleas (perhaps substantially complicating plea
bargains) and sentencing,” S.Rept. 105-409 at 42 (additional views of Sen. Hatch).
Under existing federal law, sentencing courts are to consider “relevant conduct” that is “part of the same course of
conduct or common scheme or plan as the offense of conviction,” U.S.S.G. §1B1.3(a)(2), that includes misconduct for
which the defendant has never been charged or even for which he may have been acquitted, United States v. Watts, 519
U.S. 148 (1997).
81 But see S.Rept. 108-191 at 35 (“The release [which triggers a notification requirement] must be one ‘relating to the
crime.’ This includes not only a release after a criminal conviction but also, for example, a release of a defendant found
not guilty of a crime by reason of insanity and then hospitalized in custody for further treatment, or a release pursuant
to a habitual sex offender statute”).
82 150 Cong.Rec. S4267-268 (daily ed. April 22, 2004)(remarks of Sens. Kyl and Feinstein)(“Public proceedings
include both trial level and appellate level court proceedings ... I ask Senator Feinstein, if she can comment on her
understanding of section (a)(2)? Mrs. FEINSTEIN. My understanding of this subsection is the same as the Senator’s”).
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continues to describe the obligation in the same terms used prior to the change.83 Under pre-
addition proposals it was unclear whether reasonableness was to be judged by the level of official
effort or by the effectiveness of the effort. The Senate reports noted that heroic efforts were not
expected but due diligence was, S.Rept. 108-191 at 34, S.Rept. 106-254 at 30, S.Rept. 105-409 at
25. But the obvious purpose for the right to notice was to provide a gateway to the amendment’s
other rights. Even without the addition of the clarifying “timely” requirement, what was
reasonable might have been judged by whether the efforts were calculated to permit meaningful
exercise of the amendment’s other rights.84
The Senate reports, however, explained that in rare circumstances notice by publication might be
reasonable,85 although if judged by existing due process standards such notice might not have
been adequate in ordinary circumstances.86 Notice given after a proceeding was conducted might
have seemed unreasonable because the want of timely notice might constitute an effective
exclusion from the proceedings or might defeat the right to make a victim impact statement.87 The
addition of a timeliness requirement seems to reduce the possibility of “reasonable” but untimely
notification.88 The same might be said for the new demand that notice be “accurate.” It might
seem difficult to imagine how notice could be considered either timely or reasonable, if for want
of accuracy it effectively defeated a victim’s opportunity to exercise his or her rights. One court
83 Compare, S.Rept. 108-191 at 33-34, with, S.Rept. 106-254 at 30-1, S.Rept. 105-409 at 25-6.
84 The right to notice of hearings at which an individual has a right to be heard is a component of due process under
existing law. “The Supreme Court has long made clear that due process requires notice reasonably calculated to provide
actual notice of the proceedings and a meaningful opportunity to be heard. In City of West Covina v. Perkins, [525 U.S.
234, 240] (1999), the Court explained the notice requirement in these words: A primary purpose of the notice required
by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful. See Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950)(‘Th[e] right to be heard has little reality or worth unless one is
informed that the matter [affecting one’s property rights] is pending and can choose for himself whether to appear or
default, acquiesce or contest’),” Nazarove v. INS, 171 F.3d 478, 482-83 (7th Cir. 1999).
85 S.Rept. 106-254 at 30 (“In rare mass victim cases (i.e., those involving hundreds of victims), reasonable notice could
be provided by mean[s] tailored to those unusual circumstances, such as notification by newspaper or television
announcement”); see also, S.Rept. 105-409 at 25.
86 Small v. United States, 136 F.3d 1334, 1336 (D.C.Cir. 1998)(“‘An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances
to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’
Mullane v. Central Hanover Bank & Truest Co., 339 U.S. at 314. As Mullane made clear, the Due Process Clause does
not demand actual, successful notice, but it does require a reasonable effort to give notice. ‘[P]rocess which is mere
gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.’ Mullane, 339 U.S. at 315.... [T]he Mullane Court observed that ‘[c]hance alone
brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a
newspaper.’ Id. Almost fifty years after Mullane, in an increasingly populous and mobile nation, newspaper notices
have virtually no chance of alerting an unwary person that he must act now forever lost his rights”).
The Senate reports noted that “reasonableness” must be judged by the circumstances of an individual case. Thus,
“[w]hile mailing a letter would be ‘reasonable’ notice of an upcoming parole release date, it would not be reasonable
notice of the escape of a dangerous prisoner bent on taking revenge on his accuser,” S.Rept. 108-191 at 35; S.Rept.
106-254 at 36;. S.Rept. 105-409 at 30.
87 “For these rights to notice to be effective, notice must be sufficiently given in advance of a proceeding to give the
crime victim the opportunity to arrange his or her affairs in order to be able to attend that proceeding and any
scheduling of proceedings should take into account the victim’s schedule to facilitate effective notice.” 150 Cong.Rec.
4268 (daily ed. April 22, 2004)(remarks of Sen. Kyl).
88 In the view of one commentator, “‘Timely’ notice would require that the victim be informed enough in advance of a
public proceeding to be able reasonably to organize his or her affairs to attend,” Senate Hearing V at 242 (statement of
Steven T. Twist); see also, Senate Hearing IV at 183; House Hearing IV at 20 (statement of Steven T. Twist).
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has suggested that the “accuracy” modification was made to ensure that victims are kept advised
of schedule changes.89
In the context of release notifications, the most vexing reasonableness questions may arise should
the right extend both to the accused and to the convicted as discussed below. In some instances
such as the right to notification of the release of a prisoner following full service of his sentence,
Section 3771 may require notification of victims who would not previously have been entitled to
notification and whose identity and location are therefore unknown to custodial authorities.90
Application may be challenging in the area of bail as well. The section grants both a right to
consideration of the victim’s safety and a right to reasonable notice, attendance, and comment.
Under earlier circumstances it might not be unusual for an accused to be released on recognizance
or bail before authorities could reasonably be expected to provide victims with timely notice. It
may be that the section contemplates postponement of the accused’s initial judicial appearance
until after victims can be notified and can be given a reasonable period of time to prepare and
present their views.
Early constitutional amendment proposals seemed to explicitly anticipate that a failure of timely
notice in a bail context could be rectified by recourse to the provision in the amendment that
permitted the bail decision to be revisited at the behest of a victim.91 The section contains no such
explicit provision, but nothing in the section precludes revisitation—other than abandonment of
the earlier explicit provision, perhaps.92
89 United States v. Turner, 367 F.Supp.2d 319, 332 (E.D.N.Y. 2005)(“Each of the three adjectives – ‘reasonable,
accurate, and timely’ – is important: ‘reasonable’ provides vital flexibility; ‘accurate’ may well impose an affirmative
obligation to advise victims of schedule changes (most states have similar statutory requirements); and ‘timely’ is
designed to be a flexible concept that ensures a victim can reasonably arrange her affairs to attend the proceeding for
which notice is given”); see also United States v. Ingrassia, 392 F.Supp.2d 493, 495 (E.D.N.Y. 2005)(describing an
online victim notification system considered inadequate that provided outdated scheduling information).
90 The section may apply to escapes and releases occurring after its effective date regardless of when the underlying
crime occurred; many other jurisdictions apply the right with respect to self-identifying victims of prisoners sentenced
after the effective date of the statutory provision creating or implementing the right, e.g., N.Y.Crim.Pro.Law §380.50
(notice is provided by certified mail to victims who have submitted notification cards distributed to them shortly after
the defendant is sentenced).
91 Past proposals had a provision which declared, “... Nothing in this article shall provide grounds to ... reopen any
proceeding ... except with respect to conditional release....” e.g., S.J.Res. 3 (106th Cong.). Since the amendment has no
similar prohibition on reopening at the petition of a victim, no bail exception is necessary. Of course, whether the initial
bail hearing is delayed or the accused is re-arrested following the victim’s petition to reopen, the result is the same – an
accused is detained longer than would otherwise be the case in the name of victims’ rights, S.Rept. 105-409 at 44
(additional views of Sen. Hatch)(“This provision in particular has perhaps the greatest potential to collide with the
legitimate right of defendants. All defendants and convicts have a constitutionally protected liberty interest in
conditional release, once such release is granted. Permitting victims to move to reopen such proceedings or invalidate
such rulings, would, of course, necessitate the re-arrest and detention of released defendants and convicts, likely
implicating their liberty interest”).
92 See United States v. Turner, 367 F.Supp.2d 319, 324 (E.D.N.Y. 2005)(“when it became apparent that the alleged
victims here had not been given specific notice of the first two proceedings, I considered an adjournment as an
alternative to further proceedings in violation of the victim’s rights. Another alternative, and one that I concluded was
preferable under the circumstances, was to order the government to provide a written summary or transcript of the
proceedings to any victim who was denied notice and to make it clear that I would hear any victim with respect to
whether the decision I made in the victim’s absence should be reconsidered. I do not endorse this alternative as a
routine substitute for conducting such proceedings without notice to victims – the statute plainly forbids such an
approach. But where, as here, the result of the proceeding conduct in the victims’ absence is one that does not appear to
jeopardize any substantive (as opposed to procedural) right of the victim [since the defendant was detained rather than
released on bail], the relief I ordered here seemed preferable to an order that would require further incarceration of a
(continued...)
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Release or Escape of the Accused
Section 3771 refers to notice of the release or escape of the accused. The implication is that there
is no right to notice of a release or escape following conviction, since at that point the defendant
is “convicted” rather than “accused.” If this is the section’s meaning, the consequences of the
change are considerable. The administrative burdens associated with notifying victims every time
an inmate is released from custody are not insignificant. This is especially true if the section is
construed to apply to the future release or escape of prisoners convicted of crimes committed
prior to its effective date.
Nevertheless, the committee report in the 108th Congress suggests that in the equivalent language
of the proposed constitutional amendment the Senate Judiciary Committee considered the terms
“accused” and “convicted” interchangeable and intended no change from earlier more generously
worded proposals:
The release [which triggers a notification requirement] must be one “relating to the crime.”
This includes not only a release after a criminal conviction but also, for example, a release of
a defendant found not guilty of a crime by reason of insanity and then hospitalized in custody
for further treatment, or a release pursuant to a habitual sex offender statute, S.Rept. 108-191
at 35.
The sponsors of Section 3771 endorsed this view as well:
Mrs. Feinstein: One final point. Throughout this act, reference is made to the “accused.”
Would the Senator also agree that it is our intention to use this word in the broadest sense to
include both those charged and convicted so that the rights we establish apply throughout the
criminal justice system?
Mr. Kyl: Yes, that is it my understanding. 150 Cong. Rec. S4270 (daily ed. April 22, 2004).
Moreover, the section probably cannot fairly be read to cut off the rights it promises upon the
return of a guilty verdict (when the defendant ceases to be an “accused” because of his
conviction), since it grants victims explicit rights at sentencing, 18 U.S.C. 3771(a)(4), and at
parole proceedings, 18 U.S.C. 3771(a)(2), (4).
The right may be limited under Section 3771(c)(3) when notification would be dangerous.93 The
section’s sponsors, however, urged that the limitation be invoked judiciously.94
(...continued)
criminal defendant without a substantive ruling on whether there exist conditions of release that satisfy the
requirements of the Bail Reform Act”).
93 18 U.S.C. 3771(c)(3)(“Notice of release otherwise required pursuant to this chapter shall not be given if such notice
may endanger the safety of any person”).
94 150 Cong.Rec. S4269 (daily ed. April 22, 2004)(“the notice section immediately following limits the right to notice
of release where such notice may endanger the safety of the person being released. There are cases, particularly in
domestic violence cases, where there is a danger posed by an intimate partner if the intimate partner is released. Such
circumstances are not the norm, even in domestic violence cases as a category of cases. This exception should not be
relied upon as an excuse to avoid notifying most victims”)(remarks of Sen. Kyl).
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Multiple Victims
Each of the rights found in Section 3771(a), including the right to notice, is subject to a limitation
when the court finds it impractical because of the sheer number of victims to fully accommodate
them all, 18 U.S.C. 3771(d)(2). The provision has no predecessor in the constitutional amendment
proposals. The Senate sponsors made it clear that they expected courts that find they must invoke
the provision to develop alternative procedures to minimize the curtailment of rights.95
Attendance
The right not to be excluded from any such public court proceeding, unless the court, after
receiving clear and convincing evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that proceeding. 18 U.S.C.
3771(a)(3).96
Section 3771 promises victims a limited attendance right, that is, a right not to be excluded from
public court proceedings unless attendance would color their subsequent testimony.
The Constitution promises the accused a public trial by an impartial jury97 and affords him the
right to be present at all critical stages of the proceedings against him.98 It offers victims no such
prerogatives. Their status is at best that of any other member of the general public and, in fact, the
95 150 Cong. Rec. S4269-270 (daily ed. April 22, 2004)(“I want to turn to section 2, subsection (d)(2) because it is an
unfortunate reality that in today’s world there are crimes that result in multiple victims. The reality of those situations is
that a court may find that the sheer number of victims is so large that it is impracticable to accord each victim the rights
in this bill. The bill allows that when the court makes that finding on the record the court must then fashion a procedure
that still gives effect to the bill and yet takes into account the impracticality. For instance, in the Oklahoma City
bombing case the number of victims was tremendous and attendance at any one proceeding by all of them was
impracticable so the court fashioned a procedure that allowed victims to attend the proceedings by closed circuit
televison. This is merely one example. Another may be to allow victims with a right to speak to be heard in writing or
through other methods. Importantly, courts must seek to identify methods that fit the case before that to ensure that
despite numerosity of crime victims, the rights in this bill are given effect. Does the Senator agree with this reading of
the bill? Mrs. FEINSTEIN. Absolutely.”).
96 The limitations of Section 3771(d)(2) apply here as well (“In a case where the court finds that the number of crime
victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall
fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the
proceedings”).
Rule 60(a)(2), the corresponding provision in the Federal Rules of Criminal Procedure, states that “The court must not
exclude a victim from a public court proceeding involving the crime, unless the court determines by clear and
convincing evidence that the victim’s testimony would be materially altered if the victim heard other testimony at that
proceeding. In determining whether to exclude a victim, the court must make every effort to permit the fullest
attendance possible by the victim and must consider reasonable alternatives to exclusion. The reasons for any exclusion
must be clearly stated on the record.”
97 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for
his defence,” U.S.Const. Amend. VI (emphasis added).
98 United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999), citing United States v. Gagnon, 470 U.S. 522, 526 (1985),
and Faretta v. California, 422 U.S. 806, 819 n.15 (1975).
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Constitution screens the accused’s right to an impartial jury trial from the over exuberance of the
public.99
Moreover, victims are even more likely to be barred from the courtroom during trial than
members of the general public. Ironically, the victim’s status as a witness, the avenue of most
likely access to pretrial proceedings, is the very attribute most likely to result in exclusion from
the trial.
Sequestration, or the practice of separating witnesses and holding outside the courtroom all but
the witness on the stand, is of ancient origins and “consists merely in preventing one prospective
witness from being taught by hearing another’s testimony.”100 The principle has been embodied in
Rule 615 of the Federal Rules of Evidence and in state rules that adopt the federal practice.101
Section 3771 assures victims of the right not to be excluded from any public proceedings
involving the crime except when to attend would color their subsequent testimony. It is one area
where balancing the interests of victim, defendant, and government may be the most challenging.
The language used in Section 3771’s attendance right is comparable to that found in the earlier
“best efforts” statute which recognizes the right of victims “to be present at all public court
proceedings related to the offense, unless the court determines that testimony by the victim would
be materially affected if the victim heard other testimony at trial,” 42 U.S.C. 10606(b)(4)(2000
ed.). Section 3771 also operates in conjunction with 18 U.S.C. 3510, which declares that in
federal capital cases, victims who attend a trial are not disqualified from appearing as witnesses at
subsequent sentencing hearings absent a danger of unfair prejudice, jury confusion, of the jury
being misled, or as constitutionally required.102 In other federal criminal cases, victims may be
excluded from trial only as constitutionally required, 18 U.S.C. 3510(a).
99 Woods v. Dugger, 923 F.2d 1454, 1459-460 (11th Cir. 1991)(finding a Sixth Amendment violation in a case
involving the murder of a prison guard, marked by extensive pretrial publicity, in a community where the prison system
employed a substantial percentage of the population, and in which more than half of the members in attendance during
the course of the trial were uniformed prison guards); Norris v. Risley, 918 F.2d 828, 834 (9th Cir.1990)(finding a Sixth
Amendment violation in a kidnaping/rape case in which women wearing “Women Against Rape” buttons permeated
the courtroom and its environs)(“we find the risk unconstitutionally great that these large and boldly highlighted
buttons tainted Norris’s right to a fair trial both by eroding the presumption of innocence and by allowing extraneous,
prejudicial considerations and cross-examination”). Norris also noted a similar view among the state courts, “A
decision of the West Virginia Supreme Court is informative regarding the wearing of buttons during trial. State v.
Franklin, 327 S.E.2d 449 (W.Va. 1985) involved a prosecution for driving under the influence of alcohol, resulting in
death. During the trial, various spectators from an organization campaigning under the acronym MADD (Mothers
Against Drunk Driving) wore buttons inscribed with the capital letters MADD. Most jurors knew what the initials stood
for. In reversing the conviction and remanding for a new trial, the court noted that the trial court’s ‘cardinal failure ...
was to take no action whatever against a predominant group of ordinary citizens who were tooth and nail opposed to
any finding that the defendant was not guilty.’ Id. at 455,” 918 F.2d at 832.
100 VI WIGMORE ON EVIDENCE §§1837, 1838 (1940 ed.).
101 F.R.Evid. 615(“At the request of a party the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1)
a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its
representative by its attorney, (3) a person whose presence is shown by a party to be essential to the presentation of the
party’s cause, or (4) a person authorized by statute to be present”).
102 18 U.S.C. 3510(b); 3593(c). See also United States v. McVeigh, 958 F.Supp. 512, 514-15 (D.Colo. 1997)(permitting
victims to attend trial with the observation that the court’s control over any subsequent sentencing hearing would
permit protective measures against any prejudicial impact). The McVeigh trial court had barred victim-witnesses from
trial prior to the enactment of Section 3510 and the amendment of Section 3593(c). Following that initial sequestration
order, the Court of Appeals had held that victim-witnesses had no standing based on 42 U.S.C. 10606 to seek
(continued...)
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Section 3771 is more limited than the constitutional amendment proposals, which with early
exceptions afforded a general right not to be excluded.103 It was suggested that the phrase “not to
be excluded” in the amendment proposals was used to avoid the claims that the proposal would
entitle victims to transportation to relevant proceedings or to have proceedings scheduled for their
convenience or to free them from imprisonment to attend proceedings.104 In this it would be
unlike a defendant’s right to attend. Yet like a defendant’s right to attend, the use of the phrase has
been thought to permit exclusion of the victim for disruptive behavior, excessive displays of
emotion, and other forms of impropriety for which a defendant might be excluded.105
As in the case of notification, the legislative history of constitutional amendment proposals
indicates that the section plays no role in what public proceedings can be closed even though that
action denies victims notice, attendance, and allocution rights.106 It suggests that a victim has little
ground to object if a decision is made to close a traditionally public proceeding.
On the other hand, the section conveying the right is reinforced by a later section in which the
courts are instructed to make every effort to ensure the fullest possible victim attendance.107
Together they require the trial attendance of victims unless the court “finds by clear and
convincing evidence that it is highly likely, not merely possible, that the victim-witness will alter
his or her testimony” if allowed to attend prior to testifying.108 Defendants have challenged
(...continued)
mandamus in order to overturn the lower court’s sequestration order, United States v. McVeigh, 106 F.3d 325, 334-35
(10th Cir. 1997).
103 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.); S.J.Res. 35 (107th Cong.); H.J.Res. 91 (107th Cong.); S.J.Res. 3
(106th Cong.); H.J.Res. 64 (106th Cong.). The exceptions were mentioned occurred early on, H.J.Res. 173 (104th
Cong.)(the right “to be present at, every stage of the public proceedings, unless the court determines there is good cause
for the victim not to be present”); H.J.Res. 174 (104th Cong.)(“given the opportunity to be present at every proceeding
in which those rights are extended to the accused or convicted offender”); S.J.Res. 52 (104th Cong.) (same).
104 S.Rept. 108-191 at 35-6; S.Rept. 106-254 at 31, S.Rept. 105-409 at 26. See also, 150 Cong.Rec. 4268 (daily ed.
April 22, 2004)(remarks of Sen. Feinstein)(“This language was drafted in a way to ensure that the government would
not be responsible for paying for the victim’s travel and lodging to a place where they could attend the proceedings”);
United States v. Turner, 367 F.Supp.2d 319, 332 (E.D.N.Y. 2005) (“This right effectively trumps Federal Rule of
Evidence 615, and in doing so broadens a 1997 statute, 18 U.S.C. 3510, that was enacted in response to the trial court’s
exclusion of victims from the proceedings in the Oklahoma city bombing case on the ground that they might give
victim impact testimony at a penalty phase.... [T]he right is phrased in the negative (i.e., the crime victim has the right
‘not to be excluded’) rather than as an affirmative right to attend. This is to guard against arguments that the
government has some affirmative duty to make it possible for indigent or incarcerated victims to be present in the
courtroom.... The negative phrasing also suggests that the fact that a properly notified victim cannot be present is not in
itself a circumstance that requires a proceeding to be adjourned”); United States v. Rubin, 558 F.Supp.2d 411, 423
(E.D.N.Y. 2008).
105 S.Rept. 108-191 at 36; S.Rept. 106-254 at 31, S.Rept. 105-409 at 26.
106 “The amendment works no change in the standards for closing hearings, but rather simply recognizes that nonpublic
hearings take place,” S.Rept. 108-191 at 34; S.Rept. 106-254 at 30; S.Rept. 105-409 at 25; see also, United States v.
L.M., 425 F.Supp. 948, 957 (N.D. Iowa 2006)(deciding to close juvenile proceedings and denying a motion for victim
attendance).
107 18 U.S.C. 3771(b)(“In any court proceeding involving an offense against a crime victim, the court shall ensure that
the crime victim is afforded the rights described in subsection (a). Before making a determination described in
subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall
consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any
decision denying relief under this chapter shall be clearly stated on the record.”).
108 In re Mikhel, 453 F.3d 1137, 1139 (9th Cir. 2006).
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unsuccessfully the right of victims to attend proceedings under Rule 615 and Section
3771(a)(3).109
Participation
The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding. 18 U.S.C. 3771(a)(4).110
Unlike the rights to notice and not to be excluded, the right to be heard is a right to participate.
The section describes the proceedings at which it may be invoked with greater particularity, and
here too limits application to reasonable participation in public court and parole proceedings. It
does not on its face give victims the right to be heard in closed proceedings or to be heard on
other pretrial motions, at trial, perhaps on appeal, or with respect to related forfeiture or habeas
proceedings. Nor does it explicitly give the victim the right to be heard in any particular form. It
is in these respects and others very much like the amendment proposals in the 108th Congress.111
Reasonably Heard
The right to be reasonably heard raises three possible issues: (1) is it a right to comment or to
command?; (2) does the right include the right to select the method of communication—orally or
in writing?; and (3) are there limitations on the information the victim has right to convey? When
the comment or command issue arose in connection with the proposed constitutional
amendments, the Senate Judiciary Committee reports answered that the right was not a veto but
an opportunity to present relevant information.112 The later legislative history of Section 3771 is
silent on the question, but any contrary construction would appear to have constitutional
implications.113
The evolution of the “reasonably heard” language complicates the method of communication
issue. At one time, the proposed constitutional amendments spoke of a right to be “heard, if
109 United States v. Edwards, 526 F.3d 747, 757-58 (11th Cir. 2008); United States v. Charles, 456 F.3d 249, 257-60 (1st
Cir. 2006).
110 The limitations of Section 3771(d)(2) apply here as well (“In a case where the court finds that the number of crime
victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall
fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the
proceedings”). Rule 60(a)(3), the corresponding provision in the Federal Rules of Criminal Procedure, states that “The
court must permit a victim to be reasonably heard at any public proceeding in the district court concerning release, plea,
or sentencing involving the crime.”
111 “A victim of violent crime shall have the right to ... reasonably to be heard at public release, plea, sentencing,
reprieve, and pardon proceedings,” S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
112 S.Rept. 105-409, at 27, 28 (1998)(“Victims have no right to ‘veto’ any release decision by the court, simply to
provide relevant information that the court can consider in making its determination about release.... Once again, the
victim is given no right of veto over any plea. No doubt some victims may wish to see nothing less than the maximum
possible penalty (or minimum possible) for a defendant. Under the amendment, the court will receive this information,
along with that provided by prosecutions and defendants, and give it the weight it believes is appropriate deciding
whether to accept a plea”); S.Rept. 106-254, at 32, 33 (2000); S.Rept. 108-191, at 36, 37 (2003).
113 Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)(“Due process requires that a pretrial detainee not be punished”);
North Carolina v. Pearce, 395 U.S. 711, 725 (1969)(“Due process of law, then, requires that vindictiveness against a
defendant [based on the exercise of a constitutional right] must play no part in the sentence he receives after trial”).
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present, and to submit a statement.”114 When the phrase “if present, and to submit a statement”
was dropped and the right defined as the right to be “reasonably heard,” one hearing witness
expressed concern that the courts would construe the new language to convey an absolute right to
make an oral statement:
I would expect courts to interpret the deletion of “submit a statement” to signal a legislative
intent to allow victims actually to be “heard” by making an oral statement. Nor do I think the
use of the term ‘reasonably to be heard’ would alter that interpretation; instead, I believe
courts would likely reconcile the two changes by interpreting “reasonably” to mean that a
victim’s oral statement could be subjected to reasonable time and subject matter restrictions.
If the above is correct then prison officials might face an extremely burdensome choice of
either transporting incarcerated victims to court for the purpose of being heard or providing
for live transmissions to the court room.
A related problem would extend beyond prison walls. Because the difference between the
previous and current versions of the Amendment suggest that a victim must be allowed
specifically to be “heard” rather than simply to “submit a statement”, a victim might
persuade a court that the “reasonable opportunity to be heard” guaranteed by the current
version of the Amendment carries with it an implicit guarantee that the government will take
affirmative steps, if necessary, to provide such a reasonable opportunity. This undermines
the intent of the Amendment’s careful use of negative phrasing with respect to the right not
to be excluded from public proceedings – a formulation designed to avoid a government
obligation to provide funding, to schedule the timing of a particular proceeding according to
a victim wishes, or otherwise assert affirmative effort to make it possible for a victim to
attend proceedings. House Hearing V at 79 (statement of James Orenstein).
The Senate Committee report specifically denied that the language in the proposed amendment
was intended to create a right to transportation to the trial,115 but this very point has already been
a source of judicial division. One district court and one appellate panel believe that the right to be
reasonably heard, at least at sentencing, gives the victim the right to make an oral statement;116 at
least in a bail context, another district court believes it includes no such right and that courts may
limit the presentation to written presentations;117 and in yet a third view, an uncertain member of
the appellate panel suggests that reason may limit the right in some sentencing contexts.118
114 H.J.Res. 64 (106th Cong.)(“... a victim of a crime ... shall have the right ... to be heard, if present, and to submit a
statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea,
or a sentence ...”); S.J.Res. 3 (106th Cong.).
115 S.Rept. 108-191, at 38 (2003)(“The victim’s right is to be ‘heard.’ The right to make an oral statement is
conditioned on the victim’s presence in the courtroom. As discussed above, it does not confer on victims a right to have
the government transport them to the relevant proceeding”).
116 United States v. Degenhardt, 405 F.Supp.2d 1341, 1345 (D. Utah 2005)(“The CVRA gives crime victims the right
to be ‘reasonably heard’ at sentencing. One possible interpretation of this phrase is that victims have a right to be heard
via a written submission to the court, such as a victim impact form ... Such a construction, however, would defy the
intentions of the CVRA’s drafters, ignoring the fact that defendants and prosecutors make oral statements at sentencing,
and disregard the rationales underlying victim allocution. For all these reasons the court concludes that the CVRA gives
victims the right to speak directly the judge at sentencing”); Kenna v. District Court, 435 F.3d 1011, 1016 (9th Cir.
2006)(“The statements of the sponsors of the CVRA and the committee report for the proposed constitutional
amendment disclose a clear congressional intent to give crime victims the right to speak at proceedings covered by the
CVRA”).
117 United States v. Marcello, 370 F.Supp.2d745, 750 (N.D. Ill. 2005)(“In light of the statute’s clear language, the
purpose of the detention hearing and the content of the testimony sought to be introduced in this case, I find that this
victim’s right to be reasonably heard could be satisfied through means other than an oral statement”).
118 Kenna v. District Court, 435 F.3d at 1018 (Friedman, J., dubitante)(“My concern is that the court seems to hold that
(continued...)
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Nevertheless, it is certainly difficult to argue that the sponsors of Section 3771 believed the right
to be heard could be confined to a written statement, particularly at sentencing, in the absence of
an overwhelming number of victims:
This right of crime victims not to be excluded from the proceedings provides a foundation
for the next section, section 2, (a)(4), which provides victims the right to reasonably be heard
at any public proceeding involving release, plea, or sentencing. This provision is intended to
allow crime victims to directly address the court in person. It is not necessary for the victim
to obtain the permission of either party to do so. This right is a right independent of the
government or the defendant that allows the victim to address the court. To the extent the
victim has the right to independently address the court, the victim acts as a in independent
participant in the proceedings. 150 Cong.Rec. S4268 (daily ed. April 22, 2004)(remarks of
Sen. Kyl)(emphasis added).
As to the content of the victim’s communication, the legislative history is sparse. The committee
reports on the proposed amendments speak of the courts’ discretion to reasonably limit the length
and content of the victim’s communication.119 Hearing witnesses opined that the right in the
proposed amendment embodied the right “to make a recommendation regarding the appropriate
sentence to be imposed, including in capital cases.”120 The clearest statement of intent comes
from the Senate colloquy, “When a victim invokes this right during plea and sentencing
proceedings, it is intended that [] he or she be allowed to provide all three types of victim
impact—the character of the victim, the impact of the crime on the victim, the victim’s family and
the community, and sentencing recommendations.”121
Public Court Release Proceedings
From the beginning, the amendment proposals and Section 3771 have spoken of the right to be
heard in “release” proceedings.122 There seems to be little dispute that the term contemplates the
right to be heard at bail proceedings. What other proceedings, if any, the term encompasses is a
question complicated by the qualifiers with which successive proposals surrounded the release-
related right.
Past amendment proposals once conveyed a right to be heard at public proceedings relating to a
conditional release from custody and, to the extent the inmate enjoyed a right to be heard, at
closed parole hearings.123 Later versions simply conveyed a right to be heard at public release
(...continued)
a victim has an absolute right to speak at sentencing no matter what the circumstances.... [I]t is not clear to me that this
statute goes that far. I would leave that issue open and issue an opinion of more limited scope”).
119 S.Rept. 105-409, at 29 (1998)(“a court may set reasonable limits on the length and content of statements”); S.Rept.
106-254, at 34 (same); note, however, that reference to content was omitted without explanation in the final report,
S.Rept. 108-191, at 38 (“a court may set reasonable limits on the length of statements, but should not require the victim
to submit a statement for approval before it is offered”).
120 House Hearings V, at 41 (statement of Steven J. Twist); Senate Hearings V, at 253.
121 150 Cong.Rec. S4268 (daily ed. April 22, 2004)(remarks of Sen.Kyl).
122 H.J.Res. 173 (104th Cong.) (“to comment at any such proceeding involving the possible release of the defendant
from custody”); S.J.Res. 52 (104th Cong.)(“to be heard at any proceeding involving ... a release from custody”).
123 S.J.Res. 3 (106th Cong.)(“A victim of a crime ... shall have the right ... to be heard, if present, and to submit a
statement at all such proceedings to determine a condition release from custody ... to the foregoing rights at as parole
proceeding that is not public, to the extent those rights are afforded to the convicted offender”); H.J.Res. 64 (106th
Cong.).
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proceedings.124 The clear implication was that under the later proposals victims had no right to be
heard at closed parole hearings, regardless of whether the inmate had a right to be heard.125 On
the other hand, the new formulation seemed to open a wider range of proceedings to victim
allocution.
There was always some ambiguity over whether conditional release proceedings meant
proceedings where release might be granted if certain conditions were met before release, like
acquittal at trial, or proceedings where release bound the accused or convicted offender to honor
certain conditions after release, like bail, or both. In any event, in bygone proposals the Senate
Judiciary Committee read “conditional” in the phrase “conditional release from custody,” as a
word of limitation:
The amendment extends the right to be heard to proceedings determining a “conditional
release” from custody. This phrase encompasses, for example, hearings to determine any
pretrial or post trial release (including comparable releases during or after an appeal) on bail,
personal recognizance, to the custody of a third person, or under any other conditions,
including pretrial diversion programs. Other examples of conditional release include work
release and home detention. Its also includes parole hearings or their functional equivalent,
both because parole hearings have some discretion in releasing offenders and because
releases from prison are typically subject to various conditions such as continued good
behavior. It would also include a release from a secure mental facility for a criminal
defendant or one acquitted on the grounds of insanity. A victim would not have a right to
speak, by virtue of this amendment, at a hearing to determine “unconditional” release. For
example, a victim could not claim a right to be heard at a hearing to determine the
jurisdiction of the court or compliance with the governing statute of limitations, even though
a finding in favor of the defendant on these points might indirectly and ultimately lead to the
“release” of the defendant. Similarly, there is no right to be heard when a prisoner is released
after serving the statutory maximum penalty, or the full term of his sentence. There would be
proceeding to “determine” a release in such situations and the release would also be without
condition if the court’s authority over the prisoner had expired. S.Rept. 106-254 at 32;
S.Rept. 105-409 at 27.
Thus by removing the words “conditional” and “from custody,” the proposals and consequently
Section 3771 perhaps should be understood to allow victims the right to be heard on most pretrial
motions as well as most post-trial, pre-appellate petitions, or at least any that might result in a
release of the accused or the convicted offender from jeopardy. For example, it might support an
argument that the section gives victims the right be heard at trial by the trier of fact (judge or
jury) on whether the defendant should or should not be convicted on any of the charges at issue
(i.e., at least limited trial participation, although the committee report denied any such intent).126
124 S.J.Res. 1 (108th Cong.) (“A victim shall have the right ... to be heard at public release ... reprieve, and pardon
proceedings ...”); H.J.Res. 48 (108th Cong.).
125 Cf., Senate Hearing V; House Hearing V at 35 (statement of Steven T. Twist)(“The right would also extend to post-
conviction public release proceedings, for example parole or conditional release hearings. Jurisdictions that have
abolished parole in favor of truth in sentencing regimes may still have conditional release. Only if the jurisdiction also
has a ‘public proceeding’ prior to such a conditional release would the right attach”); see also, Senate Hearing IV at
186-87; House Hearing IV at 22 (statement of Steven T. Twist).
126 S.Rept. 108-191, at 38 (2003)(“The victim’s right to be heard does not extend to the guilt determination phase of
trials, although victims may, of course, be called as a witness by either party. The Committee, however, intends no
modification of the current law, with deep historical roots, allowing a crime victim’s attorney to participate in the
prosecution”).
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It may seem more logical to suggest that proceedings to which the right attaches are only those
where the issue of whether the defendant should be released is squarely addressed—bail
proceedings and habeas proceedings under 28 U.S.C. 2255—and not proceedings where the
issues addressed may be resolved in a manner that leads to the defendant’s release. Yet at least
one commentator has suggested that the right to be heard in release proceedings includes the right
to be heard upon motions to dismiss charges. The comment comes in a discussion of the changes
in the Federal Rules of Criminal Procedure appropriate to implement the section. Under one such
proposed change, the court would be required to consider the views of the victim before it ruled
on a motion to dismiss charges, a “proposed change [which] would implement a victim’s right to
be ‘treated with fairness’ and to be heard at any proceeding ‘involving release’ of the
defendant.”127 The same logic would appear to support a victim’s right to be heard in suppression
hearings and other pretrial motions.
Regardless of how expansively “release” is construed, there are some proceedings that seem
beyond the scope of Section 3771’s participation rights. The right attaches to public proceedings.
In theory, therefore, it does not apply in grand jury proceedings or proceedings, such as those
involving juveniles, which are closed at the discretion of the court.128 The right attaches to public
proceedings “in the district court.” In theory, therefore, it does not apply in appellate proceedings
whether relating to bail or otherwise.129
Even where the right appears to otherwise apply on its face, some courts may be reluctant to
postpone the defendant’s initial appearance or release hearings to fully accommodate the right.130
Plea Bargains
Victims have a special interest in the right to be heard before the court accepts a plea agreement.
Negotiated guilty pleas account for well over 95% of the criminal convictions obtained.131 Plea
127 Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the
Crime Victims’ Rights Act, 2005 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 835, 918.
128 Cf., 150 Cong.Rec. S4268 (daily ed. April 22, 2004)(remarks of Sens. Kyl and Feinstein) (noting that the right to
attend public court proceedings was not intended to convey a right to attend closed proceedings such those before the
grand jury or those closed out of concern for national security); United States v. L.M., 425 F.Supp. 948, 957 (N.D. Iowa
2006) (deciding to close juvenile proceedings and denying motion for victim attendance).
129 Of course, even if the right to be heard applies only to public proceedings in the district court, a later subsection of
Section 3771 allows victims to enforce their rights through a writ of mandamus at the appellate level, 18 U.S.C.
3771(d)(3).
130 United States v. Turner, 367 F.Supp.2d 319, 336 (E.D.N.Y. 2005)(“A defendant’s initial appearance pursuant to
F.R.Crim.P. 5 is a public proceeding and presumptively includes consideration of whether the accused offender will be
released. See 18 U.S.C. 3142(a),(f). Accordingly, victims must be given reasonable, accurate, and timely notice of the
proceeding, as well as an opportunity to be heard with respect to bail. Of course, such application of the notice
requirement to the initial appearance raises an obvious practical difficulty, in that the defendant is generally required to
be brought before the magistrate judge ‘without unnecessary delay.’ F.R.Crim.P. 5(a)(1). The question is whether it is
either ‘necessary’ within the meaning of Rule 5 or “reasonable’ within the meaning of §3771(a)(2) to delay the initial
appearance to ensure timely notice to a victim. Answering that question may well require a case-by-case inquiry into
the circumstances that might indicate that an absent victim is uniquely able to address the issue of the defendant’s
release. I had no such indication in this case, and believe that the procedure I followed – proceeding promptly with the
initial appearance and (belatedly) requiring the government to notify victims of the result and of their right to request
reconsideration of relevant decisions made in their absence – reasonably balances the competing interests at stake”).
131 Administrative Office of the United States Courts, Judicial Business of the United States Courts, 230 (2011)(only
2,303 of the 91,938 defendants convicted of federal crimes in the year ending in September 30, 2011, were found guilty
by a judge or jury following a criminal trial; the rest pled guilty or nolo contendere).
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bargaining offers the government convictions without the time, cost, or risk of a trial, and in some
cases a defendant turned cooperative witness. It offers a defendant conviction but on less serious
charges, and/or with the expectation of a less severe sentence than if he or she were convicted
following a criminal trial,132 and/or the prospect of other advantages controlled, at least initially,
by the prosecutor—agreements not to prosecute family members or friends, or to prosecute them
on less serious charges than might otherwise be filed;133 forfeiture concessions;134 testimonial
immunity;135 entry into a witness protection program;136 and informant’s rewards,137 to mention a
few.
For the victim, a plea bargain may come as an unpleasant surprise, one that may jeopardize the
victim’s prospects for restitution; one that may result in a sentence the victim finds insufficient;138
and/or one that changes the legal playing field so that the victim has become the principal target
of prosecution.139
Section 3771 assures crime victims of the right to reasonably be heard at proceedings when a plea
bargain is accepted. The right only attaches to the acceptance of plea bargains in open court (i.e.,
at public proceedings).140 The right clearly does not vest a victim with the right to participate in
plea negotiations between the defendant and the prosecutor, which are neither public nor
proceedings.141 By the same token, the right to be heard is not the right to decide; victims must be
132 In addition to extraordinarily broad discretion to initiate or abandon a prosecution, Wayte v. United States, 470 U.S.
598 (1985); Town of Newton v. Rumery, 480 U.S. 386 (1987), prosecutors play an important role in sentencing, e.g., 18
U.S.C. 3553(b)(federal court may depart from the federal sentencing guidelines upon the motion of the prosecutor); 18
U.S.C. 3553(e)(federal court may sentence a defendant below an otherwise mandatory minimum term of imprisonment
upon the motion of the prosecutor).
133 E.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959 F.2d 1011 (D.C.Cir. 1992).
134 Cf., Libretti v. United States, 516 U.S. 29 (1995)(government agreed to limit charges and make a favorable
sentencing recommendation in exchange for the defendant’s guilty plea and his agreement to transfer all property that
would have been subject to criminal forfeiture upon his conviction).
135 E.g., 18 U.S.C. 6001-6005 (witness immunity).
136 E.g., 18 U.S.C. 3521 (witness relocation and protection).
137 E.g., 18 U.S.C. 3059 (rewards); 18 U.S.C. 3059A (rewards for crimes against financial institutions); 18 U.S.C.
3071-3077 (rewards for information relating to terrorism).
138 “The victim has two interests in the plea bargain decision. One interest is financial: the victim is interested in
restitution being imposed as part of the sentence. Thus in a charge bargain, the victim wants to insure that the defendant
pleads to a charge sufficiently serious to allow restitution; and in a sentence bargain, the victim wants to advocate an
award of restitution. The victim’s second interest is retribution, or revenge: the victim feels he or she has been violated
and that the criminal’s punishment should be severe. Therefore, in a charge bargain, the victim would want the
defendant to plead guilty to a serious charge, and in a sentence bargain, the victim would want a significant sentence
imposed,” Walling, Victim Participation in Plea Bargains, 65 WASHINGTON UNIVERSITY LAW QUARTERLY 301, 307-8
(1987).
139 See, The Proper Standard for Self-Defense in New York: Should People v. Goetz Be Viewed as Judicial Legislation
or Judicial Restraint, 39 SYRACUSE LAW REVIEW 874 (1988)(discussing prosecution of a subway rider who shot the
four young men he claimed attempted to rob him; the subway rider was subsequently prosecuted and convicted for
unlawful possession of a handgun).
140 The Senate committee reports, on the question of when public hearings might be closed thus removing the trigger
for the rights under earlier proposals, opined that, “while plea proceedings are generally open to the public, a court
might decide to close a proceeding in which an organized crime underling would plead guilty and agree to testify
against his bosses,” S.Rept. 108-191 at 34; S.Rept. 106-254 at 30; S.Rept. 105-409 at 25.
141 Cf., In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555, 564 (2d Cir. 2005) (“Nothing in CVRA requires the
Government to seek approval from crime victims before negotiating or entering into a settlement agreement”).
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heard, but their views are not necessarily controlling.142 It remains to be seen whether the
existence of the right in open court will lead to more proceedings being closed to avoid the
complications of recognizing the right.
Sentencing
At common law, victims had no right to address the court before sentence was imposed upon a
convicted defendant. The victim’s right to bring the impact of the crime upon him to the attention
of the court was one of the early goals of the victims’ rights efforts. The Supreme Court has
struggled with the propriety of victim impact statements in the context of capital punishment
cases, ultimately concluding that they pose no necessary infringement upon the rights of the
accused.143 In doing so, it noted:
Our holding today is limited to the [“wrongly decided”] holdings of Booth v. Maryland, 482
U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that evidence and
argument relating to the victim and the impact of the victim’s death on the victim’s family
are inadmissible at a capital sentencing hearing. Booth also held that the admission of a
victim’s family members’ characterizations and opinions about the crime, the defendant, and
the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was
presented at the trial in this case. Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).
The federal courts have concluded from this that in capital cases victim impact statements are
constitutionally precluded from including “characterizations and opinions about the crime, the
defendant, and the appropriate sentence.”144 Constitutionally grounded, the proscription remains
in effect, the provisions of Section 3771 notwithstanding. Payne, however, spoke to the Eighth
Amendment considerations which apply in a capital case. Eighth Amendment limitations in a
noncapital context are not necessarily the same.145
In cases not capital, as noted earlier, the sponsors of the legislation seem to have anticipated that
the right included the right to be heard orally and did not intend to permit the courts to require
participation in writing except by operation of Section 3771(d)(2) when faced with an
overwhelming number of victims at the sentencing of a single defendant. Thus far, the courts
142 S.Rept. 108-191 at 36 (“Victims have no right to ‘veto’ any release decision by a court, rather simply to provide
relevant information that the court can consider in making its determination about release”); see also Senate Hearing IV
at187; House Hearing IV at 22-3 (statement of Steven J. Twist), quoting S.Rept. 106-254 at 33(“the victim is given no
right of veto over any plea. No doubt, some victims may wish to see nothing less than the maximum possible penalty
(or minimum possible penalty) for a defendant. Under the amendment, the court will receive this information, along
with that provided by prosecutors and defendants, and give it the weight it believes is appropriate deciding whether to
accept a plea”).
143 In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that the Eighth Amendment did not permit the
presentation of victim impact evidence to a sentencing jury in a death penalty case; in Payne v. Tennessee, 501 U.S.
808 (1991), it repudiated Booth and declared that victim impact statements were not inherently suspect.
144 Welch v. Sirmons, 451 F.3d 675, 703 (10th Cir. 2006); see also, United States v. Brown, 441 F.3d 1330, 1351 (11th
Cir. 2006); Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir. 2005); United States v. Bernard, 299 F.3d 467, 480 (5th
Cir. 2002); Parker v. Bowersox, 188 F.3d 9233, 931 (8th Cir. 1999).
145 United States v. Horsfall, 552 F.3d 1275, 1284 (11th Cir. 2008)(“However, Horsfall cites no authority establishing
that this lines of cases [i.e., Payne, Booth, et al.] dealing with the presentation of victim impact evidence to a capital
sentencing jury, applies to federal judge-based sentencing in the non-capital child pornography context”); United States
v. Eberhard, 525 F.3d 175, 178 (2d Cir. 2008)(“Eberhard contends in passing that allowing victims to address the court
at sentencing ‘has Eighth Amendment implications.’ Eberhard invokes the Supreme Court’s now-overturned
prohibition on victim-impact evidence, but elides the fact that the prohibition was limited to death penalty cases”).
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seem to concur.146 The right to be heard at sentencing does not include the right to have the
victim’s impact statement included in the presentence report as long as the statement is presented
and considered by the court.147 Nor does it include a right to disclose the content of the
presentence report.148
Parole and Pardon
Section 3771 gives victims the right to be heard at parole proceedings. As noted earlier, parole is
not part of the federal criminal justice process relating to any crime committed after November 1,
1987, but continues to be a feature of the District of Columbia criminal justice process.149
The constitutional amendment proposals in the 108th Congress provided victims with a right to be
heard at public pardons proceedings. Section 3771 has no such provision. The right to be
reasonably heard applies to public court proceedings. The Constitution vests the pardoning power
in the President,150 and the power is exercised through an administrative process that does not
involve public court proceedings.151 Under Section 3771(a)(2), however, should a prisoner be
pardoned and consequently released his victims would be entitled to notice.
Appeals
Section 3371 rather clearly implies that victims have no right to be heard on appeal other than
through mandamus.152 The right to be heard is couched in terms that limit both the forum (“in
district court”) and the proceedings (“release, plea, sentencing or any parole”). Moreover,
elsewhere the government is entrusted with the responsibility to espouse the victim’s rights on
appeal, apparently as a matter of discretion.153
146 United States v. Degenhardt, 405 F.Supp.2d 1341, 1345 (D. Utah 2005)(“[T]he CVRA gives crime victims the right
to be ‘reasonably heard’ at sentencing. One possible interpretation of this phrase is that victims have a right to be heard
via a written submission to the court, such as a victim impact form ... Such a construction, however, would defy the
intentions of the CVRA’s drafters, ignoring the fact that defendants and prosecutors make oral statements at sentencing,
and disregard the rationales underlying victim allocution. For all these reasons the court concludes that the CVRA gives
victims the right to speak directly the judge at sentencing”); Kenna v. District Court, 435 F.3d 1011, 1016 (9th Cir.
2006)(“The statements of the sponsors of the CVRA and the committee report for the proposed constitutional
amendment disclose a clear congressional intent to give crime victims the right to speak at proceedings covered by the
CVRA”); but see, 435 F.3d at 1018 (Friedman, J., dubitante)(“My concern is that the court seems to hold that a victim
has an absolute right to speak at sentencing no matter what the circumstances.... [I]t is not clear to me that this statute
goes that far. I would leave that issue open and issue an opinion of more limited scope”).
147 United States v. Burkholder, 590 F.3d 1071, 1074-76 (9th Cir. 2010).
148 In re Siler, 571 F.3d 604, 609-10 (6th Cir. 2009).
149 Congress abolished parole for those convicted of federal crimes committed after November 1, 1987, P.L. 98-473, 98
Stat. 2027 (1984). Parole is included in the sentencing regime relating to crimes committed in the District, D.C.CODE
§§24-401 to 24-468.
150 U.S.Const. Art.II, §2, cl.1.
151 28 C.F.R. §§0.35, 0.36.
152 United States v. Hunter, 548 F.3d 1308, 1311 (10th Cir. 2008)(“A crime victim does not have an express right under
the CVRA to appeal the defendant’s conviction and sentence based on alleged violations of the statute. Rather, the
CVRA provides that if the district court denies a crime victim his rights, the victim may immediately petition the court
of appeals for a writ of mandamus”).
153 “In any appeal in a criminal case, the Government may assert as error the district court’s denial of any crime
victim’s right in the proceeding to which the appeal relates ... Nothing in this chapter shall be construed to impair the
(continued...)
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Confer
The reasonable right to confer with the attorney for the Government in the case. 18 U.S.C.
3771(a)(5).154
This is a right not found in the constitutional amendment proposals. The statute might be read to
afford a right to confer beginning with the commission of the offense, including with regard to the
manner in which the investigation is conducted and the decision as to what charges to bring and
against whom. The Senate sponsors of the section, however, described an extensive but more
limited right:
Section 2, (a)(5) provides a right to confer with the attorney for the Government in the case.
This right is intended to be expansive. For example. the victim has the right to confer with
the Government concerning any critical stage or disposition of the case. The right, however,
is not limited to these examples. I ask the Senator if he concurs in this intent.
Mr. Kyl. Yes. The intent of this section is just as the Senator says. This right to confer does
not give the crime victim any right to direct the prosecution. Prosecutors should consider it
part of their profession to be available to consult with crime victims about the concerns the
victims may have which are pertinent to the case, case proceedings or dispositions. Under
this provision, victims are able to confer with the Government’s attorney about proceedings
after charging. 150 Cong. Rec. S4268 (daily ed. April 22, 2004)(remarks of Sens. Feinstein
and Kyl)(emphasis added).
Initially, at least some courts appear to believe that the exercise of the right must be self-
initiated.155 The obligation, however, rests with the government, and the courts are bound to
ensure that it is honored.156 The right to confer, however, does not extend to a right to access to
the prosecution’s investigative files nor to the Probation Services’ pre-sentencing report.157
Restitution
The right to full and timely restitution as provided in law. 18 U.S.C. 3771(a)(6).158
(...continued)
prosecutorial discretion of the Attorney General or any officer under his direction,” 18 U.S.C. 3771(d)(4), (6)(emphasis
added); United States v. Hunter, 548 F.3d at 1311.
154 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding provision.
155 In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555, 564 (2d Cir. 2005)(“no petitioner has alleged that it
asked the Government to confer with it and was denied the opportunity to do so”).
156 18 U.S.C. 3771(c)(1), (b); In re Dean, 527 F.3d 391 (5th Cir. 2008)(“In passing the Act, Congress made the policy
decision – that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a
plea agreement is reached. This is not an infringement, as the district court believed, on the government’s independent
prosecutorial discretion; instead, it is only a requirement that the government confer in some reasonable way with the
victims before ultimately exercising its broad discretion”).
157 In re Kenna, 453 F.3d 1136, 1137 (9th Cir. 2006); United States v. Moussaoui, 483 F.34d 220, 235 (4th Cir. 2007);
United States v. Coxton, 598 F.Supp.2d 737, 739-41 (W.D.N.C. 2009); United States v. Rubin, 558 F.Supp.2d 411, 425
(E.D.N.Y. 2008); see also In re Siler, 571 F.3d 604, 609-10 (6th Cir. 2009).
158 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no comparable provision.
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Like many other elements of Section 3771, the language of this right is reminiscent of the
constitutional amendment proposals in the 108th and 107th Congresses which spoke of a right “to
full and timely restitution.”159 Those proposals were very different from earlier proposals. They
did not establish a right to restitution in so many words. They did not explicitly convey a right to
have proceedings reopened for failure to accommodate a victim’s right to restitution. Instead, for
the first time they spoke of just and timely claims to restitution, two concepts which could be
subject to several interpretations.
The first victims’ rights proposals promised either a right “to an order of restitution from the
convicted offender,”160 or a right “to full restitution from the convicted offender.”161 Subsequent
proposals opted for the right to a restitution order.162 The proposals appeared to make restitution
orders mandatory as a matter of right. The scope of the right was unstated. Although the proposals
applied to juvenile proceedings, the use of the term “convicted offender” might have been
construed to limit their restitution command to criminal convictions and therefore not reach
findings of delinquency.163
Restitution orders in a nominal amount or subject to priorities for criminal fines or forfeiture or
other claims against the defendant’s assets might have seemed inconsistent with the decision to
elevate mandatory victim restitution to a constitutional right. Their legislative history indicated
that these early proposals did “not confer on victims any rights to a specific amount of restitution,
leaving the court free to order nominal restitution.... The right conferred on victims [was] one to
an ‘order’ of restitution. With the order in hand, questions of enforcement of the order and its
priority as against other judgments [were] left to the applicable Federal and State law,” S.Rept.
106-254 at 37; S.Rept. 105-409 at 31.
The committee reports, however, continuously suggested that the right might include the right to
a pretrial restraining order to prevent an accused from dissipating assets that might be used to
satisfy a restitution order, S.Rept. 108-191 at 41; S.Rept. 106-254 at 37; S.Rept. 105-409 at 32.
The right also might have extended to prevent dissipation in the form of payment of attorneys’
fees for the accused, since the accused has only a qualified right to the assistance of counsel of his
choice.164
159 S.J.Res. 1 (108th Cong.), H.J.Res. 48 (108th Cong.), S.J.Res. 35 (107th Cong.), H.J.Res. 91 (107th Cong.).
160 S.J.Res. 65 (104th Cong.); H.J.Res. 173 (104th Cong.)(the right “to have the court order restitution from the
defendant upon conviction”).
161 H.J.Res. 174 (104th Cong.); S.J.Res. 52 (104th Cong.).
162 H.J.Res. 71 (105th Cong.)(the right “to an order of restitution from the convicted offender”); H.J.Res. 129 (105th
Cong.)(same); S.J.Res. 6 (105th Cong.)(same); S.J.Res. 44 (105th Cong.)(same); H.J.Res. 64 (106th Cong.)(same);
S.J.Res. 3 (106th Cong.)(same).
163 This construction might have drawn some support from the observation in the Senate report that with respect to this
language in an earlier proposal, “[t]he right is, of course, limited to ‘convicted’ defendants, that is, those who pled
guilty, are found guilty, or enter a plea of no contest,” S.Rept. 105-409 at 32. Unless they are prosecuted as adults,
juveniles do not plead guilty, are not found guilty, nor do they enter nolo pleas. They confess to being or are found
delinquent, or in need of supervision, or neglected, but they are not convicted. The committee also declared that it had
“previously explained [its] philosophy in some detail in connection with the Mandatory Victim Restitution Act,
codified at 18 U.S.C. §§3663A and 3664, and intends that this right operate in a similar fashion,” S.Rept. 105-409 at
31 (emphasis added). Even though the Mandatory Victim Restitution Act applies to juveniles tried and convicted as
adults, it does not apply to findings of delinquency or other dispositions following juvenile proceedings.
164 Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Monsanto, 491 U.S. 600, 616 (1989)(“if the
Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation
occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from
(continued...)
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What was a right to a restitution order prior to the 107th Congress became the right to
consideration of just and timely victims’ claims, appropriate to the circumstances, weighed
against the interests of others, and perhaps only applicable during proceedings on other matters.
At first glance, it appeared that as long as the victim’s interest in just restitution when asserted in
a timely manner was recognized, the amendment proposals left the law of restitution unchanged.
Not everyone read it that way. One commentator offered an example to illustrate his more
expansive understanding of its reach:
Jane Doe was beaten and raped in a remote wooded area of Vermont.... Her injuries were
extensive.... When her case was resolved by way of a plea bargain she was not given the
right to speak before the court. Incredibly, the sentence imposed did not order the criminal to
pay restitution. Today he earns $7.50 an hour making furniture inside the prison walls – and
none of it goes to her for her damages and injuries because it was not part of the criminal
sentence. If this provision had been the law, Jane would today be receiving restitution
payments each month. House Hearing IV at 27 (statement of Steven J. Twist).
The implication was that in horrific cases, victims had a right to restitution without reference to
any other factors. Yet insertion of the word “just” for the first time in the restitution component of
the amendment proposal presumably called for consideration of such factors when appropriate.
Moreover, it probably precluded restitution claims by the “ripped-off” drug dealer or others
victimized in the course of their own illegal conduct at least in some circumstances.165
Historic proposals explicitly allowed victims to reopen final proceedings in vindication of their
right to restitution. That language disappeared and in its place was a reference to “timely” claims
to restitution. The implications were obvious, but the statement quoted above seems to suggest
that “timeliness” may be judged by the date of the injury, the date of sentencing, or the date on
which the offender had the resources to begin paying restitution.
Section 3771 adds the phrase “as provided in law” to the right and substitutes “full and timely”
restitution for “just and timely” restitution. With the changes, the section seems to confirm rather
than enlarge existing law in the area of restitution. Sponsors felt that elsewhere the section
bolsters the victim’s restitution interest by ensuring the victim’s rights to notice, consultation and
participation.166 One appellate court has pointed out that the promise of “full” restitution extends
only as far as the law provides, a fact that “makes it clear that Congress recognized that there
would be numerous situations when it would be impossible for multiple crime victims to the same
set of crimes to be repaid every dollar they had lost.”167
(...continued)
frustrating that end by dissipating his assets prior to trial”).
165 Compare, United States v. Martinez, 978 F.Supp. 1442 (D.N.Mex. 1997)(refusing to issue mandatory restitution
order for the benefit of illegal Indian casino which had been the victim of an armed robbery), with, United States v.
Bonetti, 277 F.3d 441 (4th Cir. 2002) (holding that an illegal immigrant was entitled to restitution from those who
harbored her under abusive conditions).
166 150 Cong. Rec. S4268 (daily ed. April 22, 2004)(remarks of Sen. Kyl)(“I would like to turn now to the section on
restitution, section 2, (a)(6). This section provides the right to full and timely restitution as provided in law. This right,
together with the other rights in the act to be heard and confer with the Government’s attorney in this act, means that
existing restitution laws will be more effective”).
167 In re W.R.Huff Asset Management Co., LLC, 409 F.3d 555, 563 (2d Cir. 2005); see also United States v. Atlantic
States Cast Iron Pipe Co., 612 F.Supp.2d 453, 533 (D.N.J. 2009)(“The CVRA also provides that one of the enumerated
rights of a CVRA ‘crime victim’ is ‘[t]he right to full and timely restitution as provided in law.’ 18 U.S.C. §3771(a)(6).
(continued...)
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Reasonable Freedom From Delay
The right to proceedings free from unreasonable delay. 18 U.S.C. 3771(a)(7)168
The United States Constitution guarantees those accused of a federal crime a speedy trial;169 the
due process clause of the Fourteenth Amendment makes the right binding upon the states,170
whose constitutions often have a companion provision.171 The constitutional right is reinforced by
statute and rule in the form of speedy trial laws in both the federal and state realms.172
“Ironically, however, the defendant is often the only person involved in a criminal proceeding
without an interest in a prompt trial. Delay often works to the defendant’s advantage. Witnesses
may become unavailable, their memories may fade, evidence may be lost, changes in the law may
be beneficial, or the case may simply receive a lower priority with the passage of time.”173
Until recently, victims had no comparable rights, although their advocates contended they had a
very real interest in prompt disposition. Some victims sought to put a traumatic episode behind
them; some wanted to see justice done quickly; some hoped simply to end the trail of
inconveniences and hardship that all too often fell to their lot as witnesses.174
A few states have since enacted statutory or constitutional provisions establishing a victim’s right
to “prompt” or “timely” disposition of the case in one form or another.175 The federal statutory
victims’ bill of rights, 42 U.S.C. 10606 (2000 ed.), did not include a speedy trial provision, but
Congress has encouraged the states to include a right to a reasonably expeditious trial among the
rights they afford victims.176
Section 3771(a)(7) seems to convey a more generous right than its predecessors in the proposed
constitutional amendments. Yet in spite of what might appear to be an evolutionary development,
the right has been described at each stage in much the same terms; throughout the years it was
(...continued)
this provision is not considered to confer substantive rights to restitution”); United States v. Rubin, 558 F.Supp.2d 411,
(E.D.N.Y. 2008)(“The CVRA provides for the right to full and timely restitution only ‘as provided in law.’ 18 U.S.C.
§3771(a)(6)(emphasis added)”).
168 Rule 60(b)(1) of the Federal Rules of Criminal Procedure asserts that “the court must promptly decide any motion
asserting a victim’s rights described in these rules.”
169 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” U.S.Const. Amend.
VI.
170 Klopfer v. North Carolina, 386 U.S. 213 (1967).
171 E.g., R.I.CONST. art.1, §10; S.C.CONST. art.I, §14.
172 E.g., State: CONN.SUPER.CT.R. §§956B to 956F; DEL.SUPER.CT.CRIM.R. 48 (b); FLA.R. CRIM.P. 3.191; GA.CODE
ANN. §§17-7-170 to 17-7-171. Federal: 18 U.S.C. 3161-3174.
173 Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’ Rights Amendment, 1994
UTAH LAW REVIEW 1373, 1402.
174 E.g., Kelly, Victims’ Perceptions of Criminal Justice, 11 PEPPERDINE LAW REVIEW 15, 19-20 (1984); contra,
Henderson, The Wrongs of Victim’s Rights, 37 STANFORD LAW REVIEW 937, 974-77 (1985).
175 E.g. LA.REV.STAT.ANN. §46:1844 [J.] (“The victim shall have the right to a speedy disposition and prompt and final
conclusion of the case after conviction and sentencing”); N.H.REV.STAT.ANN. §21-M:8-k.
176 42 U.S.C. 10606 nt. (“It is the sense of Congress that the States should make every effort to adopt the following
goals of the Victims of Crime Bill of Rights: ... (4) Victims of crime should have the right to a reasonable assurance
that the accused will be tried in an expeditious manner”).
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suggested that perhaps the standards used to judge the defendant’s constitutional speedy trial right
govern here as well.177
In the beginning, proposals sometimes actually spoke of a victims’ speedy trial right,178 and in
other instances preferred to describe it as the right to have “proceedings resolved in a prompt and
timely manner.”179 Proposals in the 105th Congress continued the split, some focused on the
beginning and completion of trial; others on a finality of the proceedings.180 In the following
Congress, the proposals all called for “consideration of the victim’s interest in a trial free from
unreasonable delay.”181 In this form, the right was one relevant only in a trial and pretrial context.
The proposals seemed to carry the implication that the right could only be claimed in conjunction
with other proceedings (e.g., “considered” in the context of a defense or government motion for a
continuance but not a defendant’s motion for a new trial), but not necessarily provide grounds for
a free standing victim’s motion when the question of timing was not otherwise before the court.
In the 108th Congress the formulation referred to “the right to adjudicative decisions that duly
consider the victim’s ... interest in avoiding unreasonable delay.”182 Some of the words were new.
The phrase “adjudicative decisions” replaced “trials” and “proceedings”; “duly consider”
appeared instead of “consideration”; and “avoiding unreasonable delay” stood where “free from
unreasonable delay” once was. Yet at least some of the concepts seemed to remain constant.
Reasonable delays were to countenanced; unreasonable delays tolerated only if they are
outweighed by other interests. The Supreme Court’s speedy trial jurisprudence was to be used as
a guide for what was reasonable.183
On the other hand, the new wording left other questions unanswered. Were victims to have the
right to be heard prior to any decision that might either cause or reduce delay? One hearing
witness expressed concern that the right to consideration of the interest might include the right to
voice the interest on questions other than scheduling: “Does a crime victim have the right to
object to the admission of evidence on the ground that it might lengthen the trial?” House
Hearing V at 81 (statement of James Orenstein). Yet, the amendment’s language did not
necessarily create a right to assert the interest. The delay avoidance interest triggered a right to
consideration. Interests elsewhere in the amendment triggered a right to be heard. And the right to
be heard related to matters of “public release, plea, sentencing, reprieve, and pardon
177 H.J.Res. 174 (104th Cong.) (“the victim shall have the following rights: ... to a speedy trial, a final conclusion free
from unreasonable delay ...”); S.J.Res. 52 (104th Cong.)(same); S.Rept. 108-191 at 40 (2003)(“Just as defendants
currently have a right to a ‘speedy trial,’ this provision will give victims a protected right to have their interests to a
reasonably prompt conclusion of a trial considered ... In determining what delay is ‘unreasonable,’ the courts can look
to the precedents that exist interpreting a defendant’s right to a speedy trial”); see also, S.Rept. 105-409 at 19 (1998);
S.Rept. 106-254 at 23 (2000).
178 H.J.Res. 174 (104th Cong.); S.J.Res. 52 (104th Cong.).
179 H.J.Res. 173 (104th Cong.) (“any victim shall have the right ... to have the proceedings resolved in a prompt and
timely manner”); S.J.Res. 65 (104th Cong.)(“Victims ... shall have the rights ... to a final disposition free form
unreasonable delay”).
180 S.J.Res. 44 (105th Cong.)(“Each victim ... shall have the rights ... to consideration for the interest of the victim in a
trial free from unreasonable delay”); H.J.Res. 129 (105th Cong.)(same); S.J.Res. 6 (105th Cong.) (“Each victim ... shall
have the rights ... to a final disposition of the proceedings relating to the crime free from unreasonable delay”); H.J.Res.
71 (105th Cong.) (“... a victim ... shall have the right ... to seek relief from an unreasonable delay of the final disposition
of the proceedings relating to the crime”) (emphasis added in each instance).
181 H.J.Res. 64 (106th Cong); S.J.Res. 3(106th Cong.).
182 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
183 S.Rept. 108-191 at 19 (2003).
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proceedings,” not to the matters of scheduling, motions, and other pretrial and trial proceedings
which were just as likely to produce delay. Courts might have concluded the differences were
significant.
Section 3771(a)(7) continues to describe the right to delay avoidance in limiting terms, but
apparently more expansively than its forebears: “the right to proceedings free from unreasonable
delay.” Its sponsors suggested than the right was aimed at scheduling delays particularly:
I would like to move on to section 2, with a right to proceedings free from unreasonable
delay. 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.
This provision should be interpreted so that the any decision to continue a criminal case
should include reasonable consideration of the rights under this section. 150 Cong.Rec.
S4268-269 (daily ed. April 22, 2004).
Early case law indicates that the courts are sensitive to victims’ interest in delay avoidance,184 that
in some instances delay may be in the interest of at least some victims,185 and that the provision
“appears to add little if anything substantive to existing law ... except that it does appear to confer
... the right to object to delay and ask the Court to hold both government and defendant to what
the Speedy Trial Act already requires.”186
Fairness, Dignity, and Privacy
The right to be treated with fairness and with respect for the victim’s dignity and privacy. 18
U.S.C. 3771(a)(8)187
This right rarely found explicit expression in the proposed constitutional amendments, although it
clearly lies at the heart of all of them. The same language appears in the earlier federal “best
efforts” statute, 42 U.S.C. 10606 (2000 ed.), and a similar right is featured in many of the state
constitutional and statutory victims’ rights provisions.188 Unlike other rights drafted to apply only
184 United States v. McDaniel, 411 F.Supp.2d 1323, 1325 (D.Utah 2005)(refusing to allow a last-minute substitution of
defense counsel based in part upon the victim’s right to proceedings free from unreasonable delay).
185 In re W.R.Huff Asset Management Co., LLC, 409 F.3d 555, 559-60 (2d Cir. 2005)(refusing to find abuse of
discretion in the trial court’s refusal to approve more extensive but time consuming procedures to identify additional
victims of a large scale fraud).
186 United States v. Rubin, 558 F.Supp.2d 411, 427 (E.D.N.Y. 2008); United States v. Turner, 367 F.Supp.2d 319, 334
(E.D.N.Y. 2005)(“[T]his provisions appears to add little if anything substantive to existing law – in this case, the
Speedy Trial Act – but does appear to confer participatory rights on the victim”).
187 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding provision.
188 E.g., ALASKA CONST. Art.I, §24 (right to be treated with dignity, respect and fairness); ARIZ.CONST. Art.2, §2.1
(same); COLO.REV.STAT.ANN. §24-4.1-302.5 (fairness, respect and dignity); HAW.REV.STAT. §801D-1 (dignity,
respect, courtesy and sensitivity); IDAHO CONST. Art.1, §22 and IDAHO CODE §19-5306 (right to be treated with
fairness, respect, dignity and privacy); ILL.CONST. Art.1, §8.1 (right to be treated with fairness and respect for their
(continued...)
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with respect to public proceedings, the right to be treated fairly and with respect for a victim’s
dignity and privacy applies thoughout the criminal justice process.189 It does not, however, bar the
government or a defendant from advancing legitimate arguments simply because they might
offend the victim.190 A trial court’s sealing of the record—thereby preventing the victim from
determining whether his rights had been honored and then failing to act upon his motion to open
the record—is inconsistent with the victim’s right to fair treatment and respect for his dignity.191
On the other hand, the same considerations may warrant honoring requests that the victims’
identifying information be redacted from their e-mails seeking an opportunity to be heard.192
Responsibilities of the Courts
In any court proceeding involving an offense against a crime victim, the court shall ensure
that the crime victim is afforded the rights described in subsection (a). Before making a
determination described in subsection (a)(3), the court shall make every effort to permit the
fullest attendance possible by the victim and shall consider reasonable alternatives to the
exclusion of the victim from the criminal proceeding. The reasons for any decision denying
relief under this chapter shall be clearly stated on the record. 18 U.S.C. 3771(b).193
This section is new. None of the proposed constitutional amendments featured an equivalent. It
has no counterpart in the earlier federal “best efforts” section, 42 U.S.C. 10606 (2000 ed.). At
least one court has expressed the view that “the provision requires at least some proactive
procedure designed to ensure victims’ rights,” while noting the apparent primacy of the right to
attend.194 The trial court’s obligation to “ensure” victims’ rights seems to set its responsibilities a
notch above the “best efforts” level of obligation imposed upon other officials.195
(...continued)
dignity and privacy), ILL.COMP.LAWS ANN. ch.725 §120/2 (same); KAN.STAT.ANN. §74-7333 (fair[ness], compassion,
respect for dignity and privacy and suffer a minimum of unnecessary inconvenience); LA.CONST. art.1, §25 (fairness,
dignity, and respect); MD. CONST. art. 47 (dignity, respect and sensitivity); MICH.CONST. Art.1, §24 (fairness and
respect for dignity and privacy); MONT. CODE ANN. §46-24-101 (fair and proper treatment); N.H.REV.STAT.ANN. §21-
M:8-k (right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice
process); N.J.CONST. Art.1, ¶22 (fairness, compassion and respect), N.J.STAT.ANN. §52:4B-36 (dignity and
compassion); N.MEX.CONST. Art.II, §24 (fairness and respect for dignity and privacy), N.M.STAT. ANN. §31-26-2
(dignity, respect and sensitivity); OHIO CONST. Art.I, §10a (fairness, dignity and respect); OKLA.CONST. Art.2, §34
(same); ORE.CONST. Art.I, §42 (due dignity and respect); PA.STAT.ANN. tit.18 §11.102 (dignity, respect, courtesy and
sensitivity); R.I.CONST. Art. 23 (dignity, respect and sensitivity); TENN.CODE ANN. §40-38-102 (dignity and
compassion); TEX.CONST. Art.1, §30 (fairness and respect for dignity and privacy); UTAH CONST. Art.1, §28 (fairness,
respect, and dignity); VT.STAT. ANN. tit.13 §5303 (courtesy and sensitivity); VA.CODE ANN. §19.2-11.01 (dignity,
respect and sensitivity); WASH.CONST. Art.1, §35 (dignity and respect); WIS.CONST. Art.I, §9m (fairness, dignity and
respect for privacy); WYO.STAT. §1-40-203 (compassion, respect and sensitivity).
189 United States v. Heaton, 458 F.Supp.2d 1271, 1272 (D. Utah).
190 United States v. Rubin, 558 F.Supp.2d 411, 427-28 (E.D.N.Y. 2008).
191 In re Simons, 567 F.3d 800, 801 (6th Cir. 2009).
192 United States v. Madoff, 626 F.Supp.2d 420, 426-27 (S.D.N.Y. 2009).
193 Rule 60(b)(1) of the Federal Rules of Criminal Procedure asserts that “the court must promptly decide any motion
asserting a victim’s rights described in these rules.”
194 United States v. Turner, 367 F.Supp.2d 319, 323 (E.D.N.Y. 2005)(“While some proactive steps seem to be required,
the statute just as clearly does not, in most circumstances, require courts to adopt every conceivable procedure that
might protect the exercise of victims’ rights. Specifically, it is only with respect to orders denying a victim’s right to
attend court proceedings that judges are directed to ‘make every effort’ to find reasonable alternatives to exclusion. 18
U.S.C. 3771(b). There is a lot of ground between extending some effort to ‘ensure’ that victims are afforded their rights
(continued...)
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Responsibilities of Other Authorities
Officers and employees of the Department of Justice and other departments and agencies of
the United States engaged in the detection, investigation, or prosecution of crime shall make
their best efforts to see that crime victims are notified of, and accorded, the rights described
in subsection (a). 18 U.S.C. 3771(c)(1)(emphasis added).
The prosecutor shall advise the crime victim that the crime victim can seek the advice of an
attorney with respect to the rights described in subsection (a). 18 U.S.C. 3771(c)(2).196
Section 3771(c)(1) replicates the language of 42 U.S.C. 10606(a)(2000 ed.) with the addition of
the notification in italics above. Section 3771(c)(2) is new and was added in recognition of the
fact that the interests of the government and the interests of the victim may not always
coincide.197 The Department of Justice’s implementing regulations create a complaint procedure
and enforcement mechanism to ensure compliance.198 None of the proposed constitutional
amendments had a provision comparable to either Section 3771(c)(1) or 3771(c)(2).
Enforcement
Who
The crime victim or the crime victim’s lawful representative, and the attorney for the
Government may assert the rights described in subsection (a).18 U.S.C. 3771(d)(1).
Section 3771(d)(1) is an expansion of the related proposals contained in the proposed
constitutional amendments. They contained an exclusive provision and made no mention of
governmental representation (e.g., “Only the victim or the victim’s lawful representative may
assert the rights established by this article, and no person accused of the crime may obtain any
form of relief hereunder”), S.J.Res. 1/H.J.Res. 48 (108th Cong.). Section 3771(d)(1) standing on
victims and their representatives, but also expressly authorizes the government to assert rights on
behalf of the victim. The legislative history confirms the impression that “representatives”
include both victims’ attorneys and those standing in the stead of a legally unavailable victim; and
(...continued)
and making ‘every effort’ to do so.”).
195 Cf., In re W.R.Huff Asset Management Co., LLC, 409 F.3d 555, 562 (2d Cir. 2005) (“Similarly, the CVRA [18
U.S.C. 3771] provides that the determination to ‘ensure’ that the crime victim is afforded the rights enumerated in the
CVRA is entrusted to the district court to make”).
196 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no provision comparable to either Section
3771(c)(1) or Section 3771(c)(2).
197 150 Cong. Rec. S4269 (daily ed. April 22, 2004)(remarks of Sen. Kyl)(“where there is a material conflict between
the government’s attorney and the crime victim, this provision protects the crime victims’ rights. This means that if the
government lawyers interpret a right differently from a victim, urge a very narrow interpretation of a right, or do not
believe a right should be asserted, they are in conflict with the victim and this provision requires that they inform the
victim of this and direct the victim to independent counsel, such as the legal clinics for crime victims contemplated
under this law. This is an important protection for crime victims because it ensures the independent and individual
nature of their rights”).
198 28 C.F.R. §45.10.
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it negates somewhat the implication that anyone other than the actual victim enjoys ultimate
control of the victim’s rights.199 Some of the cases have already noted the propriety of prosecutors
asserting victims’ rights.200
Mandamus and Appeal
The rights described in subsection (a) shall be asserted in the district court in which a
defendant is being prosecuted for the crime or, if no prosecution is underway, in the district
court in the district in which the crime occurred. The district court shall take up and decide
any motion asserting a victim’s right forthwith. If the district court denies the relief sought,
the movant may petition the court of appeals for a writ of mandamus. The court of appeals
may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules
of Appellate Procedure. The court of appeals shall take up and decide such application
forthwith within 72 hours after the petition has been filed. In no event shall proceedings be
stayed or subject to a continuance of more than five days for purposes of enforcing this
chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be
clearly stated on the record in a written opinion. 18 U.S.C. 3771(d)(3).201
199 150 Cong.Rec. S4269 (daily ed. April 22, 2004)(remarks of Sen. Feinstein)(“[T]his [provision] allows a crime
victim to enter the criminal trial court during proceedings involving the crime against the victim and assert the rights
provided by this bill. This provision ensures that crime victims have standing to be heard in trial courts so that they are
heard at the very moment when their rights are at stake and this, in turn, forces the criminal justice system to be
responsive to a victim’s rights in a timely way. Importantly, however, the bill does not allow the defendant in the case
to assert any of the victim’s rights to obtain relief.... The provision allows the crime victim’s representative and the
attorney for the government to go into a criminal trial court and assert the crime victim’s rights. The inclusions of
representative and the government’s attorney in the provision are important for a number of reasons. First, allowing a
representative to assert a crime victim’s rights ensures that where a crime victim is unable to assert the rights on his or
her own for any reason, including incapacity, incompetence, minority, or death, those rights are not lost.... Second, a
crime victim may choose to enlist a private attorney to represent him or her in the criminal case – this provision allows
that attorney to enter an appearance on behalf of the victim in the criminal trial court and assert the victim’s rights. The
provision also recognizes that, at times, the government’s attorney may be best situated to assert a crime victim’s rights
either because the crime victim is not available at a particular point in the trial or because, at times, the crime victim’s
interests coincide with those of the government and it makes sense for a single person to express those joint interests.
Importantly, however, the provision does not mean that the government’s attorney has the authority to compromise or
co-opt a victim’s right. The rights provided in this bill are personal to the individual crime victim and it is that crime
victim that has the final word regarding which of the specific rights to assert and when. Waiver of any of the individual
rights provided can only happen by the victim’s affirmative waiver of that specific right”).
200 In re Mikhel, 453 F.3d 1137, 1138 (9th Cir. 2006)(mandamus petition following partial trial exclusion of victim-
witnesses)(“Although the United States is clearly not the ‘victim’ in this case, it is proper that the government bring this
petition because §3771 provides that ‘the attorney for the government may assert the rights described in subsection (a).’
18 U.S.C. §3771(d)(1)”); United States v. L.M., 425 F.Supp.2d 948 (N.D.Iowa 2006)(exclusion of the deceased family
members from closed juvenile transfer hearing)(“The parties also agree that the government has standing to assert the
CVRA rights of T.L.’s family members”).
201 Neither the Federal Rules of Criminal Procedure nor the Federal Rules of Appellate Procedure specifically address
this provision. Although the 72-hour deadline reflects Congress’s desire for prompt appellate action on mandamus
petitions, at least one appellate court did not think the failure to meet the deadline deprived it of jurisdiction to grant the
petition, United States v. Monzel, 641 F.3d 528, 531-32 (D.C. Cir. 2011); but see, In re McNulty, 597 F.3d 344, 348 n.4
(6th Cir. 2010)(“We would like to express our frustration that Congress permitted the courts only 72 hours in which to
read, research, write, circulate, and file an order or opinion on these petitions for a writ of mandamus”).
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In any appeal in a criminal case, the Government may assert as error the district court’s
denial of any crime victim’s right in the proceeding to which the appeal relates. 18 U.S.C.
3771(d)(4).202
These provisions originate in Section 3771. It is more explicit than any of the proposed
constitutional amendments. Furthermore, it contemplates interlocutory appeals with stays or
continuances of pending criminal proceedings of no more than five days.203 Early constitutional
amendment proposals limited the use of stays204 and later proposals were simply silent on the
issue.205
The section’s Senate sponsors apparently saw the availability of mandamus as a means of
appellate review.206 In other contexts it is more limited; it is a “drastic and extraordinary remedy
reserved for really extraordinary cases.”207 The Second Circuit has observed that a mandamus
“petitioner must usually demonstrate: (1) presence of a novel and significant question of law; (2)
the inadequacy of other available remedies; and (3) the presence of a legal issue whose resolution
will aid in the administration of justice.”208 It felt, however, that since Congress had designated
mandamus as the principal avenue of review, it did not intend to require victims to “overcome the
hurdles typically faced by a petitioner seeking review of a district court determination through a
writ of mandamus.”209 Using for guidance the Supreme Court’s determination of the appropriate
standard of review under the Equal Access to Justice Act which grants attorneys’ fees to the
victims of governmental overreaching, the Circuit panel settled on an abuse of discretion
standard.210 The Ninth and Eleventh Circuits agreed.211 The Fifth, Sixth, Tenth, and D.C. Circuits
did not. They concluded that when Congress selected mandamus as an avenue of review, it used
202 Rule 60(b)(2) of the Federal Rules of Criminal Procedure provides that “A victim’s rights described in these rules
may be asserted by the victim, the victim’s lawful representative, the attorney for the government, or any other person
as authorized by 18 U.S.C. §3771(d) and (e).”
203 18 U.S.C. 3771(d)(3).
204 S.J.Res. 3 (106th Cong.)(“Nothing in this article shall provide grounds to stay or continue any trial....”); H.J.Res. 71
(105th Cong.)(“... nothing in this article shall provide grounds for the victim to ... obtain a stay of trial....”).
205 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
206 “The provision provides that [the] court shall take the writ and shall order the relief necessary to protect the crime
victim’s right. This provision is critical for a couple of reasons. First, it gives the victim standing to appear before the
appellate courts of this country and ask for review of a possible error below. Second, while mandamus is discretionary,
this provision means that courts must review these cases. Appellate review of denials of victims’ right is just as
important as the initial assertion of a victim’s right. This provision ensures review and encourages courts to broadly
defend the victims’ rights.
“Mr. President, does Senator Kyl agree?
“Mr. KLY. Absolutely. Without the right to seek appellate review and a guarantee that the appellate court will hear the
appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country’s appellate
courts are designed to remedy errors of lower courts and this provision requires them to do so for victim’s rights. For a
victims right to truly be honored, a victim must be able to assert the rights in trial courts, to then be able to have denials
of those rights reviewed at the appellate level, and to have the appellate court take the appeal and order relief. By
providing for all of this, this bill ensures that victims’ rights will have meaning.” 150 Cong.Rec. S4270 (daily ed. April
22, 2004) (remarks of Sens. Feinstein and Kyl).
207 Cheney v. United States District Court, 542 U.S. 367, 380 (2004).
208 In re W.R.Huff Asset Management Co., LLC, 409 F.3d 555, 562 (2d Cir. 2005).
209 Id.
210 Id. at 562-63, citing Pierce v. Underwood, 487 U.S. 552 (1988).
211 Kenna v. United States District Court, 435 F.3d 1011, 1017 (9th Cir. 2006); In re Stewart, 552 F.3d 1285, 1288-289
(11th Cir. 2008).
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the term as it was traditionally understood.212 They also considered mandamus the exclusive
avenue for victim redress of a trial court’s failure to adhere to the demands of the Crime Victims’
Rights Act.213
The government’s prerogative to assert the rights of a victim includes the right to appeal214 and to
petition for mandamus relief on a victim’s behalf.215
Limitations
Limits on Mandamus
In no case shall a failure to afford a right under this chapter provide grounds for a new trial.
A victim may make a motion to re-open a plea or sentence only if – (A) the victim has
asserted the right to be heard before or during the proceeding at issue and such right was
denied; (B) the victim petitions the court of appeals for a writ of mandamus within 14 days;
and (C) in the case of a plea, the accused has not pled to the highest offense charged. This
paragraph does not affect the victim’s right to restitution as provided in title 18, United
States Code. 18 U.S.C. 3771(d)(5).216
Proponents of the proposed constitutional amendment wrestled with the question of the
circumstances, if any, under which criminal proceedings could be reopened to correct a denial of
a victim’s rights. At first, they suggested that relief could only granted prospectively, specific
judicial decisions could not be postponed or reopened.217 Later, they yielded a bit and allowed
bail and restitution proceedings to be revisited, but otherwise made the prospective nature of
212 In re Antrobus, 519 F.3d 1123, 1125 (10th Cir. 2008)(“Mandamus is the subject of longstanding judicial precedent.
We assume that ‘Congress knows the law and legislates in light of federal court precedent.’ Applying the plain
language of the statute, we review this CVRA matter under traditional mandamus standards”), quoting Morissette v.
United States, 342 U.S. 246, 263 (1952); accord In re Dean, 527 F.3d 391, 393-94 (5th Cir. 2008); In re Acker, 596
F.3d 370, 372 (6th Cir. 2010)(finding it unnecessary to resolve the issue because the petition was entitled to relief under
either standard”); United States v. Monzel, 641 F.3d 528, 533-34 (D.C. Cir. 2011).
213 United States v. Monzel, 641 F.3d at 540-44, citing in accord, United States v. Aguirre-Gonzalez, 597 F.3d 46, 52-5
(1st Cir. 2010); United States v. Hunter, 548 F.3d 1308, 1317 (10th Cir. 2008); In re Amy, 591 F.3d 792, 793 (5th Cir.
2009). The First Circuit also held that it might have treated a victim’s appeal as a petition for mandamus, but declined
to do so in the interest of finality, United States v. Aguirre-Gonzalez, 597 F.3d at 55-6.
214 18 U.S.C. 3771(d)(4).
215 United States v. Monzel, 641 F.3d at 542 (“It is also significant that while Congress expressly authorized the
government to assert victims’ rights on direct appeal under §3771(d)(4), it made no such provision for victims
themselves.... This contrasts with §3771(d)(4), which authorizes both the government and victims to bring mandamus
petitions”); In re Mikhel, 453 F.3d at 1138 n.1(9th Cir. 2006); 150 Cong. Rec. H8188 (Oct. 6, 2004)(remarks of Rep.
Sensenbrenner)(“The government and or the crime victim can then seek a writ of mandamus from the appropriate
Court of Appeals to ensure that the crime victim’s rights are protected”).
216 Rules 60(b)(5) and 69(b)(6), the corresponding provisions in the Federal Rules of Criminal Procedure state
respectively that “A victim may move to reopen a plea or sentence only if: (A) the victim asked to be heard before or
during the proceeding at issue, and the request was denied; (B) the victim petitions the court of appeals for a writ of
mandamus within 10 days after the denial, and the writ is granted; and (C) in the case of a plea, the accused has not
pleaded to the highest offense charged” and that “A failure to afford a victim any right described in these rules is not
grounds for a new trial.”
217 S.J.Res. 65 (104th Cong.)(“... nothing in this article shall provide grounds for the victim to challenge a charging
decision or a conviction, obtain a stay of trail, or compel a new trial”); H.J.Res. 71 (105th Cong.).
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relief even more explicit.218 Finally, they simply left the question for legislative resolution except
for a prohibition on new trials.219
Section 3771(d)(5) limits the opportunity to revisit plea and sentencing proceedings. It says
nothing about bail, restitution, or other trial proceedings, all of which are thus presumably subject
to the expedited, five-day stay and mandamus procedure of Section 3771(d)(3).
No New Rights for the Accused
A person accused of the crime may not obtain any form of relief under this chapter. 18
U.S.C. 3771(d)(1).220
Some of the constitutional amendment proposals relied on an assertion that “only” a victim or her
representative could claim their benefits,221 but most included an explicit disclaimer in one form
or another that barred defendant’s use of the proposed amendment.222 The provision’s intent is
apparent and sparked little debate over the course of its legislative history.223 Use of the term “the
crime” seems to suggest that the disqualification is itself limited; an individual accused or
convicted of one crime may none the less be the victim of another. This would appear to be so
even if the two offenses arose out of the same event, such as a case of domestic violence in which
each of the participants assaulted the other.
In no case shall a failure to afford a right under this chapter provide grounds for a new trial ...
18 U.S.C. 3771(d)(5).224
A similar clause appears in the proposed constitutional amendments,225 but on a different footing.
But for the clause in a constitutional amendment, a victim’s right to attend trial might be thought
to trump the constitutional protection of the accused against double jeopardy. On the other hand,
the absence of such a clause in a statute such as Section 3771 might be construed to mean that the
new trial remedy would only be available to a victim if it were of benefit to the accused. If the
accused had been acquitted double jeopardy would bar a new trial; if he had been convicted a
new trial would afford him a second chance at acquittal.226
218 H.J.Res. 64 (106th Cong.)(“Nothing in this article shall provide grounds to stay or continue any trial, reopen any
proceeding or invalidate any ruling, except with respect to conditional release or restitution or to provide rights
guaranteed by this article in future proceedings, without staying or continuing a trial”).
219 H.J.Res. 91 (107th Cong.); S.J.Res. 1 (108th Cong.).
220 Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no comparable provision.
221 E.g., S.J.Res. 44 (105th Cong.); H.J.Res. 71 (105th Cong.).
222 E.g., S.J.Res. 65 (104th Cong.)(“nor shall anything in this article provide grounds for the accused or convicted
offender to obtain any form of relief”); S.J.Res. 6 (105th Cong.); H.J.Res. 88 (107th Cong.); S.J.Res. 1 (108th Cong.).
223 “Importantly, however, the bill does not allow the defendant in the case to assert any of the victim’s rights to obtain
relief. This prohibition prevents the individual accused of the crime from distorting a right intended for the benefit of
the individual victim into a weapon against justice,” 150 Cong.Rec. S4269 (April 22, 2004)(remarks of Sen. Feinstein).
224 In like manner, Rule 60(b)(6) of the Federal Rules of Criminal Procedure declares, “A failure to afford a victim any
right described in these rules is not grounds for a new trial.”
225 E.g., H.J.Res. 10 (108th Cong.); S.J.Res. 65 (104th Cong.).
226 See also, “This provision demonstrates that victim’s rights are not intended to be, nor are they, an attack on
defendants’ protections against double jeopardy,” 150 Cong.Rec. S4270 (April 22, 2004)(remarks of Sen. Feinstein).
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Many Victims—One Accused
In a case where the court finds that the number of crime victims makes it impracticable to
accord all of the crime victims the rights described in subsection (a), the court shall fashion a
reasonable procedure to give effect to this chapter that does not unduly complicate or
prolong the proceedings. 18 U.S.C. 3771(d)(2).227
Section 3771(d)(2) has no counterpart in any of the proposed constitutional amendments. The
committee reports accompanying the amendments did acknowledge that the right to “reasonable”
notice might be honored less thoroughly in cases involving hundreds of victims than in cases
involving only a few.228 The same might have been said (but was not) of the right to be
“reasonably” heard and the right not to be excluded. The amendments instead afforded the courts
flexibility to deal with cases involving hundreds of victims or other unusual circumstances.229
Section 3771(d)(2) deals with the challenge more explicitly, although both the language used and
the legislative history make it clear that when compelled to invoke the section the courts are
expected to adopt alternative procedures in the spirit of the reduced right.230
No Damages
Nothing in this chapter shall be construed to authorize a cause of action for damages or to
create, to enlarge, or to imply any duty or obligation to any victim or other person for the
breach of which the United States or any of its officers or employees could be held liable in
damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of
the Attorney General or any officer under his direction. 18 U.S.C. 3771(d)(6).
Section 3771(d)(6) has two components—(1) a denial of any intent to create a cause of action for
damages against the United States or its officers or employees and (2) a denial of any intent to
227 Rule 60(b)(3) of the Federal Rules of Criminal Procedure contains a virtually identical provision: “If the court finds
that the number of victims makes it impracticable to accord all of them their rights described in these rules, the court
must fashion a reasonable procedure that gives effect to these rights without unduly complicating or prolonging the
proceedings.”
228 S.Rept. 108-191, at 34 (2003)(“In rare mass victim cases (i.e., those involving hundreds of victims), reasonable
notice could be provided to means tailored to those unusual circumstances, such as notification by newspaper or
television announcement”); S.Rept. 106-254, at 30 (2000).
229 S.J.Res. 1 (108th Cong.)(“These rights shall not be restricted except when and to the degree dictated by a substantial
interest in public safety or the administration of criminal justice, or by compelling necessity”); S.Rept. 108-191, at 41
(2003)(“The amendment does not impose a straightjacket that would prevent the proper handing of unusual situations.
The restrictions language in the amendment explicitly recognizes that in certain rare circumstances restrictions may
need to be created to victims’ rights ... For instance, for a crime perpetrated against hundreds of victims, it may be
impractical or even impossible to give all victims the right to be physically present in the courtroom ... Similar
restrictions on the number of persons allowed to present oral statements might be appropriate in rare cases involving
large numbers of victims”).
230 150 Cong.Rec. S4269-270 (April 22, 2004)(remarks of Sen. Kyl and Sen. Feinstein); see also In re Dean, 527 F.3d
391, 394-95 (5th Cir. 2008) where the circuit court rejected reliance on the number of victims and noted the
insufficiency of the trial court’s alternative of excusing the government’s obligation to confer by providing for victim
participation in the court’s hearing to decide whether to accept the bargain and observed that “The district court’s
reasons for its ex parte order do not pass muster. The first consideration is the number of victims. The government and
the district court relied on [Section 3771(a)(5)]. Here, however, where there were fewer than two hundred victims, all
of whom could be easily reached, it is not reasonable to say that notification and inclusion were ‘impracticable.’ There
was never a claim that notification itself would have been too cumbersome, time consuming, or expensive or that not
all victims could be identified and located; the government itself suggested a procedure whereby the victims would be
given prompt notice of their rights under the CVRA after the plea agreement was signed.”
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impair prosecutorial discretion. The constitutional amendment proposals generally included a
similar ban on damages.231 They were thought not only to bar a cause of action for damages on
behalf of aggrieved victims but also to preclude requests for the appointment of counsel to
represent indigent victims or for payment of attorneys fees for retained counsel.232 The sponsors
of Section 3771 made no similar statements during the course of debate, but did point out that
other sections of the legislation established a grant program to provide victims with legal
assistance.233 Other Members regretted the fact that the section makes no provision for the
appointment of counsel for indigent victims.234
Referring to prosecutorial discretion, the courts have observed that Section 3771(d)(6) makes it
clear that Section 3771 “gives victims a voice not a veto,”235 but that does not mean that victims’
rights stand at the prosecutor’s convenience or that only the prosecutor’s voice will be heard.236
Justice Department Regulations
Not later than 1 year after the date of enactment of this chapter, the Attorney General of the
United States shall promulgate regulations to enforce the rights of crime victims and to
ensure compliance by responsible officials with the obligations described in law respecting
crime victims. 18 U.S.C. 3771(f)(1).
Section 3371(f) instructs the Attorney General to promulgate regulations which designed an
official to receive victim complaints concerning performance under the section, training for
Justice Department employees, and disciplinary sanctions for willful and wanton violations. The
Department of Justice issued revised victim assistance guidelines in May 2005 and again in
231 E.g., S.J.Res. 1 (108th Cong.)(“Nothing in this article shall be construed to ... authorize any claim for damages”);
S.J.Res. 65 (104th Cong.)(“... nor shall anything in this article give rise to a claim for damages against the United States,
a State, a political subdivision, or a public official”).
232 S.Rept. 108-191 at 42 (2003) (“The limiting language in the provision also prevents the possibility that the
amendment might be construed by courts as requiring the appointment of counsel at state expense to assist victims. Cf.
Gideon v. Wainwright, 372 U.S. 335 (1963)(requiring counsel for indigent criminal defendants)”); S.Rept. 105-409 at
35 (1998); S.Rept. 106-254 at 41(2000).
233 150 Cong.Rec. S4267 (daily ed. April 22, 2004)(remarks of Sen. Kyl)(“The Act before us, in addition to setting
forth the rights and providing a remedy for the victims of crime, has an authorization of funding. Let me describe that
authorization ... $7 million to the Office of Victims of Crime for the National Crime Victim Law Institute to provide
grants and assistance to lawyers to help victims of crime in court. It is the only entity in the country that provides
lawyers for victims in criminal cases ...”).
234 150 Cong.Rec. S4272 (daily ed. April 22, 2004)(remarks of Sen. Leahy).
235 United States v. Rubin, 558 F.Supp.22d 411, 418 (E.D.N.Y. 2008).
236 In re Dean, 527 F.3d at 395 (“The real rub for the government and the district court was that, as the district judge
who handled the ex parte proceeding [excusing victim notification until a plea agreement could be negotiated] ...
reasoned, ‘due to extensive media coverage of the explosion any public notification of a potential criminal disposition
resulting from the government’s investigation would prejudice BP and would impair the plea negotiation process and
may prejudice the case in the event that no plea is reached.’ In making that observation, the court missed the purpose of
the CVRA’s right to confer. In passing the Act, Congress made the policy decision – which we are bound to enforce –
that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea
agreement is reached. That is not an infringement, as the district court believed, on the government’s independent
prosecutorial discretion”); United States v. Heaton, 458 F.Supp.2d 1271, 1273 (D.Utah 2006)(ellipsis and emphasis of
the court) (“To be sure, the CVRA also provides that it shall not be construed ‘to impair the prosecutorial discretion of
the Attorney General.... ’ But executive discretion is not impaired when, after a prosecutor has determined to file a
motion to dismiss, the court considers a victim’s views in aid of its determination whether to grant such a motion”).
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October 2011 that include Section 3771 matters.237 The department issued the regulations called
for in Section 3771(f) on November 17, 2005.238
18 U.S.C. 3771 (text)
(a) Rights of crime victims. – A crime victim has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or
any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court,
after receiving clear and convincing evidence, determines that testimony by the victim would
be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s dignity and
privacy.
(b) Rights afforded. – In any court proceeding involving an offense against a crime victim,
the court shall ensure that the crime victim is afforded the rights described in subsection (a).
Before making a determination described in subsection (a)(3), the court shall make every
effort to permit the fullest attendance possible by the victim and shall consider reasonable
alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any
decision denying relief under this chapter shall be clearly stated on the record.
(c) Best efforts to accord rights. –
(1) Government. – Officers and employees of the Department of Justice and other
departments and agencies of the United States engaged in the detection, investigation, or
prosecution of crime shall make their best efforts to see that crime victims are notified of,
and accorded, the rights described in subsection (a).
(2) Advice of attorney. – The prosecutor shall advise the crime victim that the crime victim
can seek the advice of an attorney with respect to the rights described in subsection (a).
237 (1) United States Department of Justice, Office of Justice Programs, Office of Victims of Crime, Attorney General
Guidelines for Victim and Witness Assistance (May 2005), available at http://www.usdoj.gov/olp/pdf/
ag_guidelines.pdf. (2) United States Department of Justice, Office of Justice Programs, Office of Victims of Crime,
Attorney General Guidelines for Victim and Witness Assistance (Oct. 1, 2011), available at http://www.justice.gov/olp/
pdf/ag-guidelines2011.pdf.
238 70 Fed. Reg. 69653 (2005)(28 C.F.R. §45.10).
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(3) Notice. – Notice of release otherwise required pursuant to this chapter shall not be given
if such notice may endanger the safety of any person.
(d) Enforcement and limitations. –
(1) Rights. – The crime victim or the crime victim’s lawful representative, and the attorney
for the Government may assert the rights described in subsection (a). A person accused of
the crime may not obtain any form of relief under this chapter.
(2) Multiple crime victims. – In a case where the court finds that the number of crime
victims makes it impracticable to accord all of the crime victims the rights described in
subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter
that does not unduly complicate or prolong the proceedings.
(3) Motion for relief and writ of mandamus. – The rights described in subsection (a) shall be
asserted in the district court in which a defendant is being prosecuted for the crime or, if no
prosecution is underway, in the district court in the district in which the crime occurred. The
district court shall take up and decide any motion asserting a victim’s right forthwith. If the
district court denies the relief sought, the movant may petition the court of appeals for a writ
of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant
to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up
and decide such application forthwith within 72 hours after the petition has been filed. In no
event shall proceedings be stayed or subject to a continuance of more than five days for
purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons
for the denial shall be clearly stated on the record in a written opinion.
(4) Error. – In any appeal in a criminal case, the Government may assert as error the district
court’s denial of any crime victim’s right in the proceeding to which the appeal relates.
(5) Limitation on relief. – In no case shall a failure to afford a right under this chapter
provide grounds for a new trial. A victim may make a motion to re-open a plea or sentence
only if –
(A) the victim has asserted the right to be heard before or during the proceeding at issue and
such right was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and
(C) in the case of a plea, the accused has not pled to the highest offense charged.
This paragraph does not affect the victim’s right to restitution as provided in title 18, United
States Code.
(6) No cause of action. – Nothing in this chapter shall be construed to authorize a cause of
action for damages or to create, to enlarge, or to imply any duty or obligation to any victim
or other person for the breach of which the United States or any of its officers or employees
could be held liable in damages. Nothing in this chapter shall be construed to impair the
prosecutorial discretion of the Attorney General or any officer under his direction.
(e) Definitions. – For the purposes of this chapter, the term “crime victim” means a person
directly and proximately harmed as a result of the commission of a Federal offense or an
offense in the District of Columbia. In the case of a crime victim who is under 18 years of
age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the
representatives of the crime victim’s estate, family members, or any other persons appointed
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as suitable by the court, may assume the crime victim’s rights under this chapter, but in no
event shall the defendant be named as such guardian or representative.
(f) Procedures to promote compliance. –
(1) Regulations. – Not later than 1 year after the date of enactment of this chapter, the
Attorney General of the United States shall promulgate regulations to enforce the rights of
crime victims and to ensure compliance by responsible officials with the obligations
described in law respecting crime victims.
(2) Contents. – The regulations promulgated under paragraph (1) shall –
(A) designate an administrative authority within the Department of Justice to receive and
investigate complaints relating to the provision or violation of the rights of a crime victim;
(B) require a course of training for employees and offices of the Department of Justice that
fail to comply with provisions of Federal law pertaining to the treatment of crime victims,
and otherwise assist such employees and offices in responding more effectively to the needs
of crime victims;
(C) contain disciplinary sanctions, including suspension or termination from employment,
for employees of the Department of Justice who willfully or wantonly fail to comply with
provisions of Federal law pertaining to the treatment of crime victims; and
(D) provide that the Attorney General, or the designee of the Attorney General, shall be the
final arbiter of the complaint, and that there shall be no judicial review of the final decision
of the Attorney General by a complainant.
Rule 60. Victim’s Rights (text)
(a) In General.
(1) Notice of a Proceeding. The government must use its best efforts to give the victim
reasonable, accurate, and timely notice of any public court proceeding involving the crime.
(2) Attending the Proceeding. The court must not exclude a victim from a public court
proceeding involving the crime, unless the court determines by clear and convincing
evidence that the victim’s testimony would be materially altered if the victim heard other
testimony at that proceeding. In determining whether to exclude a victim, the court must
make every effort to permit the fullest attendance possible by the victim and must consider
reasonable alternatives to exclusion. The reasons for any exclusion must be clearly stated on
the record.
(3) Right to Be Heard on Release, a Plea, or Sentencing. The court must permit a victim to
be reasonably heard at any public proceeding in the district court concerning release, plea, or
sentencing involving the crime.
(b) Enforcement and Limitations.
(1) Time for Deciding a Motion. The court must promptly decide any motion asserting a
victim’s rights described in these rules.
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(2) Who May Assert the Rights. A victim’s rights described in these rules may be asserted
by the victim, the victim’s lawful representative, the attorney for the government, or any
other person as authorized by 18 U.S.C. §3771(d) and (e).
(3) Multiple Victims. If the court finds that the number of victims makes it impracticable to
accord all of them their rights described in these rules, the court must fashion a reasonable
procedure that gives effect to these rights without unduly complicating or prolonging the
proceedings.
(4) Where Rights May Be Asserted. A victim’s rights described in these rules must be
asserted in the district where a defendant is being prosecuted for the crime.
(5) Limitations on Relief. A victim may move to reopen a plea or sentence only if:
(A) the victim asked to be heard before or during the proceeding at issue, and the request
was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 10 days after the
denial, and the writ is granted; and
(C) in the case of a plea, the accused has not pleaded to the highest offense charged.
(6) No New Trial. A failure to afford a victim any right described in these rules is not
grounds for a new trial.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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