Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

September 29, 2006 – June 8, 2021 RL33679

Crime Victims’ Rights Act: A Summary and
Legal Analysis of 18 U.S.C. § 3771
Updated June 8, 2021
Congressional Research Service
https://crsreports.congress.gov
RL33679

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 the victims of
crimes committed in violation of federal law or the laws of the District of Columbia. It defines a
victim as anyone directly and proximately harmed by such an offense, individuals and legal
entities alike. It does not appear to otherwise include family members 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; (8) the right
to be treated fairly and with respect to one’s dignity and privacy; (9) the right to be informed in a
timely manner of any plea bargain or deferred prosecution agreement; and (10) the right to be
informed of the statutory rights and services to which one is entitled.
The section directs the federal 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 a cause-of-action for damages in any
instance where a victim is afforded less than the section’s full benefits. Moreover, it creates no
implicit cause of action for relief for pre-charge violations and may not be construed to impede
prosecutorial discretion.
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 Justice for Victims of Trafficking Act of 2015 added to the inventory of victims’
statutory rights and clarified the appellate standard to be used to enforce those rights. The text of
Section 3771 is attached. So is the text of Rule 60 of the Federal Rules of Criminal Procedure.

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Federal Rule of Criminal Procedure 60. Victim’s Rights (text) .................................................... 53

Contacts
Author Information ........................................................................................................................ 54

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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.
(9) The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.
(10) The right to be informed of the rights under this section and the services described in
section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10607(c)) and
provided contact information for the Office of the Victims’ Rights Ombudsman of the
Department of Justice.2
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 U.S. Constitution. Section 3371 borrows extensively from the language in the
federal restitution statutes, which seems appropriate since, in the case of restitution, it simply
serves as a reminder of the rights the restitution statutes supply, that is, “the right to full and
timely restitution as provided in law.”
The statute has remained with but few changes since its enactment in 2004. Soon thereafter, the
Adam Walsh Child Protection and Safety Act of 2006 clarified its application in habeas corpus
proceedings.3 More recently, the Justice for Victims of Trafficking Act of 2015 added the two new

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). This report is available in an abridged form—without the footnotes, attributions, citations
to authority, or appendices found here—as CRS Report RS22518, Crime Victims’ Rights Act: A Sketch of 18 U.S.C.
§3771, by Charles Doyle.
2 18 U.S.C. § 3771(a). The Justice for Victims of Trafficking Act added the language in italics, P.L. 114-22,
§ 113(a)(1), 129 STAT. 240 (2015).
3 P.L. 109-248, § 212, 120 STAT. 616 (2006).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

rights that appear in italics above.4 It also resolved a split among the federal appellate courts over
the mandamus standard of review to be applied when victims seek appellate vindication of a
denial of their rights.5
Background
Legal reform in the name of crime victims began to appear in state and federal law in the 1960s.
It can be seen in victim restitution and compensation laws;6 in the reform of rape laws,7 drunk
driving statutes,8 and bail laws;9 and in provisions for victim impact statements at sentencing,10 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 amendment to their state constitutions,11 and each of the
states had a general statutory declaration of victims’ rights.12

4 P.L. 114-22, § 113(a), 129 STAT. 240 (2015).
5 P.L. 114-22, § 113(c), 129 STAT. 241 (2015).
6 Michael P, Smodish, But What About the Victim? The Forsaken Man in American Criminal Law, 22 U. FLA. L. REV.
1, 10-20 (1969) (describing early state victim compensation statutes); PRESIDENT’S COMM’N ON L ENF’T & ADMIN. OF
JUST. 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.”).
7 J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. PA. L. REV.
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
also Vivian Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 COLUM. L. REV. 1 (1977).
8 Steven Alderman, Highway Safety—Menace on Our Highways—Is Implied Consent the Answer?, 18 DEPAUL L. REV.
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).
9 Note, Bail Reform in the State and Federal Systems, 20 VAND. L. REV. 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 John N. Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 VA. L.
REV. 1223, 1236 (1969) (noting that the Administration’s preventive detention proposals were limited to crimes that
usually “involve planning, deliberation and the purposeful selection of a victim who is almost always a stranger”).
10 Phillip A. Talbert, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLA L.
REV. 199, 200-01, n.12 (1988) (noting that by the mid-1980s, at least thirty-eight states had enacted statutes calling for
some form of victim impact statement at sentencing).
11 Douglas E. Beloof, Victims’ Rights: A Documentary and Reference Guide, Table 1.2 (2010). The current inventory
of state constitutional provisions includes: ALA. CONST. art. I, § 6.01; 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);
GA. CONST. art. 1, § 1, ¶ xxx; 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; KY. CONST. § 26; MD. D. 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.M. CONST. art. II, § 24; N.C. Const. art. I, § 37; N.D. CONST. art. I, § 25; OHIO CONST. art. I,
§ 10a; OKLA. CONST. art. II, § 34; ORE. CONST. art. I, §§ 42, 43; PA. CONST. art. 1, § 9.1; R.I. CONST. art. I, § 23; S.C.
CONST. art. I, § 24; S.D. CONST. art. 6, § 29; 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. Some commentators suggest we are
in the midst of a new wave of victims’ rights amendments to state constitutions. Paul G. Cassell & Margaret Garvin,
Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J. CRIM. AND
CRIMINOLOGY 99, 101 (2020) (noting a dozen states have recently amended their victims’ rights constitutional
provisions).
12 ALA. CODE §§ 15-23-60 to 15-23-84; ALASKA STAT. §§ 12.61.010 to 12.61.900; ARIZ. REV. STAT. ANN. §§ 13-4401
to 13-4443; ARK. CODE ANN. §§ 16-90-1101 to 16-90-1115; CAL. PENAL CODE §§ 679–680.04; COLO. REV. STAT. ANN.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

In the meantime, Congress had enacted a series of individual victims’ rights provisions13 as well
as a general aspirational federal statute, 42 U.S.C. § 10606, directed to the performance of federal
officials.14 Section 10606 was accompanied by a statement of the sense of Congress encouraging
similar action by the states15 and by specific directions to the heads of the various federal law
enforcement departments and agencies for implementation, both of which remain in effect.16

§§ 24-4.1-301 to 24-4.1-305; CONN. GEN. STAT. ANN. §§ 54-201 to 54-235; DEL. CODE ANN. tit. 11 §§ 9401–9420;
FLA. STAT. ANN. §§ 960.001–960.298; GA. CODE ANN. §§ 17-17-1 to 17-17-16; HAW. REV. STAT. §§ 801D-1 to 801D-
7; IDAHO CODE § 19-5306; ILL. COMP. LAWS ANN. ch. 725 §§ 120/1–120/9; IND. CODE ANN. §§ 35-40-5-1 to 35-40-5-
13; IOWA CODE ANN. §§ 915.1–915.100; KAN. STAT. ANN. § 74-7333; KY. REV. STAT. ANN. §§ 421.500–421.576; LA.
REV. STAT. ANN. §§ 46:1841–46:1846; ME. REV. STAT. ANN. tit. 17-A §§ 2101–2109; MD. CODE ANN. CRIM. PRO. §§
11-101 to 11-105; MASS. GEN. LAWS ANN. ch. 258B §§ 1–13; MICH. COMP. LAWS ANN. §§ 780.751–780.834; MINN.
STAT. ANN. §§ 611a.01–611a.90; MISS. CODE ANN. §§ 99-43-1 to 99-43-101; MO. ANN. STAT. §§ 595.010–595.232;
MONT. CODE ANN. §§ 46-24-101 to 46-24-220; NEB. REV. STAT. § 81-1848; NEV. REV. STAT. §§ 178.569–178.5698;
N.H. REV. STAT. ANN. § 21-M:8-k; N.J. STAT. ANN. §§ 52:4B-36 to 52:4B-76; N.M. STAT. ANN. §§ 31-26-1 to 31-26-
15; N.Y. EXEC. LAW §§ 640–649; N.C. GEN. STAT. §§ 15A-830 to 15A-839; N.D. CENT. CODE §§ 12.1-34-01 to 12.1-
34-08; OHIO REV. CODE ANN. §§ 2930.01–2930.19; OKLA. STAT. ANN. tit. 21 §§ 142a-1 to 142b; ORE. REV. STAT.
§§ 147.405–147.438; PA. STAT. ANN. tit. 18 §§ 11.201–11.216; R.I. GEN. LAWS § 12-28-1 to 12-28-12; S.C. CODE ANN.
§§ 16-3-1505 to 16-3-1565; S.D. COD. LAWS ANN. §§ 23A-28C-1 to 23A-28C-15; TENN. CODE ANN. §§ 40-38-101 to
40-38-303; TEX. CODE OF CRIM. PRO. arts. 56.01–56.15; UTAH CODE ANN. §§ 77-38-1 to 77-38-405; VT. STAT. ANN. tit.
13 §§ 5301–5322; VA. CODE ANN. §§ 19.2-11.01 to 19.2-11.4; WASH. REV. CODE ANN. §§ 7.69.010–7.69.05; W.VA.
CODE §§ 61-11A-1 to 61-11A-8; WIS. STAT. ANN. §§ 950.01–950.11; WYO. STAT. §§ 1-40-201 to 1-40-210.
13 E.g., 18 U.S.C. §§ 3510 (victim attendance rights), 3525 (victims compensation fund), 3555 (notice to fraud victims),
3663-3664 (restitution); FED. R. CRIM. P. 32(i)(4)(B) (victim impact statements at sentencing), FED. R. EVID. 412
(relevancy of victims’ past conduct).
14 P.L. 101-647, § 502, 104 STAT. 4820 (1990) (once codified at 42 U.S.C. § 10606):
Victims’ rights. (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.
Congress repealed § 10606 when it enacted § 3771, P.L. 108-405, § 102(c), 118 STAT. 2264 (2004).
15 P.L. 101-647, § 506, 104 STAT. 4822 (1990) (once codified at 42 U.S.C. § 10606 nt.).
16 P.L. 101-647, § 503, 104 STAT. 4820 (1990) (once codified at 42 U.S.C. § 10607 nt.). As part of the reorganization
of Title 42 of the U.S. Code and transfers to Title 34, 34 U.S.C. § 20141 now provides:
(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) 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 the victims of their right to receive, on request, the services described in
subsection (c); 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).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

(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 [the] 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 title 42, 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).
(e) Definitions
For the purposes of this section—
(1) the term “responsible official” means a person designated pursuant to subsection (a) 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.
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In addition, beginning in the 104th Congress, both houses regularly considered victims’ rights
amendments to the U.S. Constitution.17 Unable to reach the consensus necessary for passage,
sponsors opted for a statutory substitute,18 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 the Senate on April 21, 2004, and passed the following day.19 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, 2004.20 The Senate passed H.R. 5107 unamended three days later,21 and the President
signed it on October 30, 2004.22 The implementing amendments to the Federal Rules of Criminal
Procedure, including Rule 60 (victims’ rights), became effective on December 1, 2008.23

17 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; Federal Victims’ Rights Amendment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong., 2d Sess. (2002) [hereinafter 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) [hereinafter 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) [hereinafter 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) [hereinafter Senate Hearing V].
18 “[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. 7295 (2004) (remarks of Sen.
Feinstein); see also id. at 7300 (“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).
19 150 Cong. Rec. 7316 (2004).
20 150 Cong. Rec. 21087-88 (2004). See also H.Rept. 108-711 (2004).
21 150 Cong. Rec. 22951 (2004).
22 P.L. 108-405, 118 STAT. 2260 (2004).
23 The Federal Rules of Criminal Procedure now feature these victim-friendly rules: FED. R. CRIM. 1(b)(12) (defines the
term “victim” for purposes of the Rules as it is defined in Section 3771(e)); FED. R. CRIM. 12.1(b) (limits disclosure of
victim/witness’s name and address when the defendant claims an alibi defense); FED. R. CRIM. 12.3 (limits discovery of
victim/witness’s name and address when the defendant claims a public-authority defense); FED. R. CRIM. 12.4
(identification of organizational victim limited to a good cause exception); FED. R. CRIM. 17(b)(3) (notice affording
victim an opportunity to move to quash subpoena for victim’s personal or confidential information); FED. R. CRIM. 18
(place of trial set with due regard for convenience of victims among others); FED. R. CRIM. 21(b) (transfer of place of
trial for convenience of victims among others); FED. R. CRIM. 28 (appointment of interpreters for victims); FED. R.
CRIM. 32(d)(2)(B) (presentence report must contain information relating to financial, social, psychological, and medical
impact on victims); FED. R. CRIM. 32(i)(4)(B) (court must address and permit victims who are present to be heard at
sentencing); FED. R. CRIM. 60 (victim’s rights).
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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.24
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 U.S. 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.25
Section 3771 suffers no such limitation.26 Instead, it borrowed language from the federal
restitution statutes, 18 U.S.C. §§ 3663 and 3663A, which, then as now, define a victim as “a
person directly and proximately harmed as a result of the commission of an offense for which
restitution may be ordered.”27 Section 3771 adopted the restitution provisions’ representational
language as well.28 However, it has nothing comparable to the explicit provision for schemes or
conspiracies found in the restitution statutes.29 Section 3771 is otherwise explicitly more
expansive. It encompasses all federal crimes and those of the District of Columbia.30 The
restitution statutes, on the other hand, are more limited.31 These differences notwithstanding, the

24 18 U.S.C. § 3771(e). The Federal Rules of Criminal Procedure adopt the same definition by cross reference: FED. R.
CRIM. P. 1(b)(11).
25 Cf. S.Rept. 105-409 (additional views of Sen. Hatch); Jayne W. Barnard, Allocution for Victims of Economic Crimes,
77 NOTRE DAME L. REV. 39 (2001).
26 Section 3771 applies to both violent and nonviolent crimes, United States v. Degenhardt, 405 F. Supp. 2d 1341,
1342-45 (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.
27 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2).
28 Both § 3663 and § 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.”
29 “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 § 3771 in italics).
30 Id. § 3771(e). Coverage extends to the victims of federal conspiracy offenses. United States v. Allen, 364 F. Supp. 3d
1234, 1255 (D. Kan. 2019).
31 Section 3663A covers any federal offense that is: (A) “(i) a crime of violence, as defined in section 16; (ii) an offense
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courts have consulted their experience under the restitution statutes when construing the
definition of victim for purposes of the victims’ rights statute.32
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 U.S. Code is to the contrary. Unless the context
suggests another intent, the word “person” as used in the U.S. Code is understood to “include
corporations, companies, associations, firms, partnerships, societies, and joint stock companies as
well as individuals.”33
Earlier restitution cases rejected arguments that only human beings could be “victims.”34 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.35 Section 3771’s coverage of legal entities seems to have been generally assumed
and with little explicit discussion.36
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.37 The 2011

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 § 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).
32 In re McNulty, 597 F.3d 344, 350 n.6 (6th Cir. 2010) (“While we find our case law interpreting the VWPA and the
MVRA [the restitution statutes] to be persuasive, it is not binding on our interpretation of the CVRA [18 U.S.C. §
3771] for the purposes of determining whether an individual is a ‘crime victim’. . . . Whether the CVRA’s definition of
a ‘crime victim’ is best understood as co-extensive with the MVRA and VWPA definitions regarding offenses
qualifying for restitution will only be fully developed through further cases in this Circuit. . . . However . . . we find our
case law construing the VWPA and the MVRA persuasive, both for how the CVRA is to be interpreted procedurally
and for when an individual qualifies as a victim of a conspiracy.”); United States v. Atl. 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 will be
interpreted consistent with existing and evolving case law under the VWPA and MVRA.”); United States v. Thuna, 382
F. Supp. 3d 166, 170 (D.P.R. 2019) (“Federal courts apply the same standard to the VWOA and the CVRA in
determining a claimant’s victim status.”); Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal
Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 BYU L. REV. 835, 857.
33 1 U.S.C. § 1. U.S. DEP’T OF JUST., ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE 8 (2011
ed.) (rev. May 2012) [hereinafter 2011 AG Guidelines].
34 United States v. Kirkland, 853 F.2d 1243, 1246 (5th Cir. 1988); United States v. Sunrhodes, 831 F.2d 1537, 1545-46
(10th Cir. 1987); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir. 1986).
35 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, 1268-70 (11th Cir. 2006) (condominium association).
36 United States v. Ruzicka, 331 F. Supp. 3d 888, 898 (D. Minn. 2018) (concluding a corporation, directly and
proximately harmed, qualified as a victim for purposes of Section 3771); 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 [sic] rights under the Act.”); In re Loc. #46 Metallic Lathers Union,
568 F.3d 81, 85-87 (2d Cir. 2009) (union local was not a victim for purposes of § 3771, because the injury it claimed
was not “directly and proximately” caused by the offense to which the defendant pled guilty).
37 United States v. Ekanem, 383 F.3d 40, 42-43 (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
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AG Guidelines take the position that governmental entities are not eligible for “court enforceable
rights,” but may be entitled to restitution.38 Section 3771’s limited available case law indicates
that a governmental entity is not a person entitled to victim’s rights under the statute.39
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.40 “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.41 The
implication might have been that restitution was appropriate where 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
considered victims for purposes of the restitution statutes. The loss must be directly and
proximately caused by the offense. This means:
First: [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].42
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.43 The restitution statutes enlarge the victim

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.’ . . . [W]e conclude that the context of the 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-
70 (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, 863 (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 be entitled to an award of restitution).
38 2011 AG Guidelines, supra note 32, at 12.
39 United States v. Kasper, 60 F. Supp. 3d 1177, 1178-79 (D.N.M. 2014); see also In re Her Majesty, 785 F.3d 1273,
1276 (9th Cir. 2015) (“We asked the parties to address whether petitioner, a foreign sovereign, is a ‘person’ who may
be a ‘crime victim’ under 18 U.S.C. § 3771(e). This appears to be an open question in this circuit, but we need not
reach it here in light of the disposition above.”).
40 18 U.S.C. §§ 3579, 3580 (1982 ed.).
41 495 U.S. 411, 418 (1990).
42 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) (“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 that 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)” (internal quotation marks and citations omitted)); United
States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002).
43 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));
Robertson, 493 F.3d at 1334 (“[W]e agree with the definitions that our sister circuits have adopted . . . .”); see also
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definition by including those directly harmed by an offense one of whose elements is a “scheme,
conspiracy or pattern.”44 Section 3771 features the restitution statutes’ “direct and proximate”
cause language, without the “scheme, conspiracy, or pattern” component.
Section 3771’s use of the phrase “directly and proximately harmed” nevertheless “encompasses
the traditional ‘but for’ and proximate cause analyses.”45
Crime Charged
Under the restitution statutes, restitution is available only for harm caused by the crime of
conviction.46 With the exception of victims of crimes committed in furtherance of a scheme,
conspiracy, or pattern conviction, victims of offenses, other than the crime of conviction, 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.47
The same cannot be said of the victims’ rights statute. Section 3771 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.48 Section 3771 and the restitution
statutes 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 that are the subject of a particular

United States v. Donaby, 349 F.3d 1046, 1054 (7th Cir. 2003) (finding a victim under the Restitution Act was harmed
by “a likely and foreseeable outcome of the crime”).
44 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).
45 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); United States v. Sharp, 463 F. Supp. 2d 556, 567 (E.D. Va. 2006)); see also United States
v. Greig, 717 F.3d 212, 223 (1st Cir. 2013); United States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012); In re Fisher, 649
F.3d 401, 402-03 (5th Cir. 2011); In re McNulty, 597 F.3d 344, 350-52 (6th Cir. 2010); In re Thuna, 382 F. Supp. 3d
166, 170 (D.P.R. 2019); Morris v. Nielsen, 374 F. Supp. 3d 239, 251-52 (E.D.N.Y. 2019); United States v. Atl. States
Cast Iron Pipe Co., 612 F. Supp. 2d 453, 469 (D. N.J. 2009).
46 United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015); United States v. Kieffer, 794 F.3d 850, 853-54 (7th Cir.
2015); In re Loc. #46 Metallic Lathers Union, 568 F.3d 81, 85-86 (2d Cir. 2009); United States v. Stennis-Williams, 7
F.3d 927, 930 (8th Cir. 2009); United States v. Arledge, 553 F.3d 881, 898 (5th Cir. 2008).
47 Kieffer, 794 F.3d at 853-54 (defendant confessed to robbing six banks, and pled guilty to robbing three of them; the
trial court had no authority to order restitution paid to the three banks not covered by the plea); In re Loc. #46 Metallic
Lathers Union, 568 F.3d at 86-87 (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 of
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
of 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).
48 United States v. Stewart, 552 F.3d 1285, 1288-89 (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.”).
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proceeding in the case of the victims’ rights statute—are unlikely to be able to claim the benefits
of a victim. 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.49
The Justice Department’s Office of Legal Counsel (OLC) believes “the CVRA is best read as
providing that the rights identified in Section 3771(a) are guaranteed from the time that criminal
proceedings are initiated (by complaint, information, or indictment) and cease to be available if
all charges are dismissed either voluntarily or on the merits (or if the Government declines to
bring formal charges after the filing of a complaint).”50 The 2011 AG Guidelines make the same
point: “[T]he particular charges filed in a case will define the group of individuals with CVRA
rights. . . . 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.”51
Congress responded to the OLC opinion with a 2015 amendment that assures victims of the right
to notification of plea and deferred prosecution agreements.52 Section 3771, under other
circumstances, moreover, has been found to afford the obvious victim of a clearly identifiable
federal crime at least some of its benefits notwithstanding the absence of a charge or even a

49 See United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (“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), authorizes 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 the CVRA, which explicitly noted that 18
U.S.C. § 3771(a)(6) ‘makes no changes in the law with respect to victims’ ability to get 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.”); United States v. Thuna, 382 F. Supp. 3d 166, 170 n.2 (D.P.R. 2019) (“While a claimant seeking victim
status may believe that’s a defendant should have been charged with an additional or different crime, the CVRA clearly
states that ‘nothing in this [statute] shall be construed to impair the prosecutorial discretion of the United States.’”)
(quoting 18 U.S.C. § 3771(d)(6)); see also 2011 AG Guidelines, supra note 32, at 8 (“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.”).
50 U.S. DEP’T OF JUST., OFF. OF LEGAL COUNS. THE AVAILABILITY OF CRIME VICTIMS’ RIGHTS UNDER THE CRIME
VICTIMS’ RIGHTS ACT OF 2004 1 (Dec. 17, 2010).
51 2011 AG Guidelines, supra note 32, at 8.
52 18 U.S.C. § 3771(a)(9) (“The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.”); see also H.Rept. 114-7, at 7-8 (2015).
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suspect.53 And other statutes or rules sometimes fill the void when a victim fails to qualify under
Section 3771.54
Family of Victims
Section 3771, like the restitution statutes, states that in the case of a deceased or incapacitated
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 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 they are entitled to none of the rights found in the statute. This is
not the case. Family members do not lose their status as victims by virtue of the possible

53 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, 1342 (S.D. Fla. 2011) (“The United States argues that . . . the CVRA
applies only after formal charges are filed. The Court finds this argument unavailing.”); subsequently, Doe v. United
States, 950 F. Supp.2d 1262, 1267 (S.D. Fla. 2013) (“[T]he court finds that the CVRA is properly interpreted to
authorize the rescission or ‘re-opening’ of a prosecutorial agreement—including a non-prosecution arrangement—
reached in violation of a prosecutor’s conferral obligations under the statute.”); still later, In re Wild, 955 F.3d 1196,
1205, vac’d for rehearing en banc, 967 F.3d 1285 (11th Cir. 2020). The Eleventh Circuit subsequently held en banc:
“the CVRA does not provide a private right of action authorizing crime victims to seek judicial enforcement of CVRA
rights outside the confines of a preexisting proceeding [i.e. pre-charge].” In re Wild, 994 F.3d 1244, 1269 (11th Cir.
2021).
54 E.g., United States v. Smith, 967 F.3d 198, 215-16 (2d Cir. 2020) (“Smith further argues that the district court
procedurally erred when it allowed KN1 [the victim of Smith’s earlier crime] to speak during the sentencing hearing.
But even if Smith is correct that KN1 did not qualify as a statutory victim of Smith’s most recent child pornography
offenses, see 18 U.S.C. § 3771(e)(2)(A) … Congress has instructed that ‘[n]o limitation shall be placed on the
information concerning the background, character, and conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing an appropriate sentence,’ 18 U.S.C. § 3661.”).
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appointment of a representative of the incapacitated or deceased victim.55 The 2011 AG
Guidelines simply paraphrase the statutory language and thus do not weigh in on the issue.56
Crimes Under What Law
Various past proposed constitutional amendments would have covered the victims of crimes
committed in violation of state law, the U.S. Code, Code of Military Justice, the D.C. Code and/or
U.S. territorial codes.57 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.”58 It clearly
does not apply to the victims of state crimes. Section 3771 should probably not be read to extend
rights to the victims of the crimes proscribed in any of the territorial codes and the Uniform Code
of Military Justice. The courts are likely to conclude that Congress did not intend to cover victims
of offenses under these codes, since they had been expressly included in earlier proposed victims’
rights amendments to the Constitution; since these codes frequently have a victims’ rights
provision;59 and since the victims of D.C. crimes are specifically mentioned.
Section 3771 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. Section 3771
rights with respect to juvenile proceedings, however, may depend upon whether the juvenile

55 The fact that a representative has been appointed for an incapacitated or deceased victim does not deprive the
victim’s family of their status as victims. See United States v. Lawrence, 735 F.3d 385 (6th Cir. 2014) (“Each of the
family members allowed to attend the trial and sentencing proceedings was a victim in his or her own right. None of
them was present as a court-designated representative of the deceased victim. . . . Under a straightforward reading of
the statutes, each family member met the definitions of victim under 18 U.S.C. § 3771 and 42 U.S.C. § 10607(e)(2).”);
United States v. Pirk, 284 F. Supp. 3d 445, 459 n.3 (W.D.N.Y. 2018) (“As a family member of [murder victim]
Szymanski, who is now deceased, Kristen is a victim for purposes of CVRA.”); United States v. Johnson, 362 F. Supp.
2d 1043, 1055-56 (N.D. Iowa 2005) (“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. Hairson, 888 F.2d 1349, 1355 (11th Cir. 1989)
(noting, in dicta with regard to 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”); but see
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).
56 2011 AG Guidelines, supra note 32, at 8.
57 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).
58 Some may consider the inclusion of the District of Columbia unusual because the D.C. Code already features
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 § 3771 or the D.C. Code provisions.
59 See, 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.; DEFENSE DEP’T DIRECTIVE 1030.1 (Apr. 13, 2004).
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proceedings are open or closed.60 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 an adult.”61
Who Is Not a Victim
The Accused
A person accused of the crime may not obtain any form of relief under this chapter.62
Some of the constitutional amendment proposals relied on an assertion that “only” victims or
their representatives could claim their benefits,63 but most included an explicit disclaimer in one
form or another that barred defendant’s use of the proposed amendment.64 The provision’s intent
here is apparent, and sparked little debate over the course of its legislative history.65
A corporation or other legal entity may incur criminal liability by virtue of the misconduct of a
rogue officer or employee.66 Thus, under some circumstances, the entity might be considered both
an offender and a victim, but not here. A corporation may not claim restitution for the losses it
incurs as consequences of its executives’ misconduct.67
The Right to Be Reasonably Protected
from the Accused
The right to be reasonably protected from the accused.68
Section 3771 lists the right to be reasonably protected from the accused first among its victims’
rights. Section 3771’s components can be traced to a comparable provision in the 108th
Congress-proposed constitutional amendments in most instances. 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.69 The previous language focused on “adjudicative decisions”; the new language

60 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).
61 2011 AG Guidelines, supra note 32, at 13 (referring to the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-
5042).
62 18 U.S.C. § 3771(d)(1). See also United States v. Ward, 732 F.3d 175, 187 (3d Cir. 2013) (defendant has no standing
to ask an appellate court to vacate his sentence for failure of the trial court to order victim restitution).
63 E.g., S.J.Res. 44 (105th Cong.); H.J.Res. 71 (105th Cong.).
64 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.).
65 “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. 7303 (2004) (remarks of Sen. Feinstein).
66 In re Wellcare Health Plans, Inc., 754 F.3d 1234, 1240 (11th Cir. 2014) (citing United States v. Dotterweich, 320
U.S. 277, 281 (1943); N.Y. Cent. & Hudson R.R. Co. v. United States, 212 U.S. 481, 492-92 (1909)).
67 In re Wellcare Health Plans, Inc., 754 F.3d at 1238-39.
68 18 U.S.C. § 3771(a)(1). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding
provision.
69 S.J.Res. 1 (108th Cong.) (“the right to adjudicative decisions that duly consider the victim’s safety”); H.J.Res. 48
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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.70 Nevertheless, the colloquy on
the floor between two of the principal Senate sponsors ended with the comment that they
considered the term “accused” to mean “convicted” as well.71 Earlier in their discussion, they
summarized the right simply using a trial protection example.72
The clause appears to have been the subject of little judicial construction.73 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.”74 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)).75 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.76 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 witnesses77 and to subpoenas for personal or confidential
information about victims,78 respectively.

(108th Cong.).
70 150 Cong. Rec. 7301 (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.”).
71 Id. at 7304 (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. KYL.
Yes, that []is my understanding.”).
72 Id. at 7301 (remarks of Sen. Feinstein).
73 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)).
74 Id. 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.
75 Turner, 367 F. Supp. 2d at 332.
76 18 U.S.C. § 3771(a)(2), (4).
77 FED. 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.”).
78 FED. 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.”).
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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.79
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.80
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.81 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,82 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.83
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.84 Under such circumstances, the statutory rights of the victim
must yield.

79 18 U.S.C. § 3771(c)(1), (3). 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.”
80 18 U.S.C. § 3771(d)(2).
81 150 Cong. Rec. 7301-02 (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 Calarco’s name from the Plea Agreement would violate the
Crime Victims’ Rights Act.”).
82 18 U.S.C. § 3771(c)(3).
83 Id. § 3771(d)(2).
84 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, 1020-21 (D. Mont. 2005) (In doing so, the
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Section 3771 originally had one curious omission. Until amended to include Section 3771(a)(10),
it did not give victims the right to notification of their rights; it merely imposed an obligation
upon Government officials to “make their best efforts to see that crime victims are notified” of
them.85
This notification of the rights was a component of the early constitutional amendment
proposals,86 which followed the lead of several state constitutions and statutes.87 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.88 There were objections,
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,89 since the provision was not included in later proposals.90
Section 3771(a)(2)’s notice clause, in this respect and others, is essentially the same as its
forerunner in the 108th Congress resolutions to amend the Constitution.91 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

court 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.”).
85 18 U.S.C. § 3771(c)(1).
86 E.g., S.J.Res. 65 (104th Cong.); H.J.Res. 71 (105th Cong.); S.J.Res. 3 (106th Cong.).
87 E.g., ARIZ. CONST. art. 2, § 2.1(12); IND. CODE ANN. § 35-40-5-9; LA. CONST. art.1, § 25; MD. D. RTS. art. 47(b);
MASS. GEN. LAWS ANN. ch. 258B, § 3; N.J. STAT. ANN. § 52:4B-42; ORE. CONST. art. I, § 42; TENN. CONST. art. I, § 35;
WYO. STAT. §1-40-203.
88 “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
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.
89 “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).
90 E.g., S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
91 Id.
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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.92
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.
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.93
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.94 “Public proceedings” for purposes of Section 3771 are those that
involve written, rather than oral, presentations to the court.95

92 “(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).
93 S.Rept. 108-191, at 34; see also S.Rept. 106-254, at 30, S.Rept. 105-409, at 25.
94 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); United States v.
C.S., 968 F.3d 237, 250-51 (3d Cir. 2020) (noting that the district court did not abuse its discretion when, after finding
C.S. delinquent for threatening a church in violation of 18 U.S.C. §875(c), it ordered notification of church leaders of
the threat under Section 3771(a)(2), but without identifying C.S. and denying the government’s request to notify the
police because the police were not victims of the threat).
95 United States v. Ebbers, 432 F. Supp. 3d 421, 425 (S.D.N.Y. 2020) (“Congress thus gave victims the right to speak at
public proceeding in court, but Congress did not create any separate right to be heard when a decision on a motion for
compassionate release is made based only on written presentations of the parties.”) (citing United States v. Burkholder,
590 F.3d 1071, 1075 (9th Cir. 2010); Kenna v. U.S. Dist. Court for Cent. Dist. Cal., 435 F.3d 1011, 1014-15 (9th Cir.
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Parole Proceedings
Congress abolished parole for those convicted of federal crimes committed after November 1,
1987.96 Parole for felonies under the laws of the District of Columbia was abolished pursuant to
congressional command effective August 5, 2000.97
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 term’s meaning. The Senate reports’ discussion of
proceedings “related to the crime” in earlier versions, for instance, specifically mentioned
appellate proceedings.98
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.”99 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).
Historical proposals, which speak in terms of “proceedings related to the crime,” 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.100
The change to “proceedings involving the crime” might be considered a repudiation of that
construction.101

2006) (notifying victims and affording them an opportunity to be heard on whether to conduct a hearing)); but see
United States v. Williams, 456 F. Supp. 3d 414, 415 (D. Conn. 2020) (“[T]he Court held a telephonic hearing on the
motion [for compassionate release], at which the Government, after having notified and obtained the views of victims
in this case, informed the Court that it does not object to Mr. Williams’s motion.”); United States v. Haynes, 456 F.
Supp. 3d 496, 506 (E.D.N.Y. 2020) (“[T]he Court understands the letter as alerting the Court that, in the event a
hearing were held on Haynes’s current motion [for reduction of sentence], the government would seek to locate and
notify the victims of Haynes’s crimes of their rights under the CVRA to appear. . . . As this memorandum reflects,
however, the Court’s decision is based on the written submissions, so the CVRA is not implicated.”).
96 P.L. 98-473, 98 Stat. 2027 (1984).
97 P.L. 105-33, § 11212, 111 Stat. 741 (1997).
98 S.Rept. 106-254, at 31, S.Rept. 105-409, at 26.
99 Id. at 36 and 30.
100 “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. See United States v. Watts,
519 U.S. 148 (1997).
101 One witness, however, thought it more likely to confirm an intent to embrace civil proceedings. Senate Hearing V,
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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.’”102 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.103 Section 3771 was the subject of a
colloquy on the floor between its Senate sponsors, which is somewhat ambiguous but seems to
confirm the proceedings as to which notice is due include appellate proceedings.104 Section 3771
eliminates the speculation previously possible that the rights might be available in an
administrative context, such as in administrative immigration proceedings, by confining the
proceedings covered to “court” and parole 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
continues to describe the obligation in the same terms used prior to the change.105 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.106 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.107

supra note 17, at 162; House Hearing V, supra note 17, 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 Committee 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, supra note 17, at 122; House Hearing IV, supra note 17, at 50.
102 S.Rept. 108-191, at 34.
103 Id. (“[T]he right applies not only to initial hearings on a case, but also rehearings, hearings at an appellate level, and
any case on a subsequent remand.”); but see S.Rept. 108-191, at 35 (“The release [that 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.”).
104 150 Cong. Rec. 7301-03 (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.”).
105 Compare S.Rept. 108-191, at 33-34, and S.Rept. 106-254, at 30-1, S.Rept. 105-409, at 25-6.
106 S.Rept. 108-191, at 34; S.Rept. 106-254, at 30; S.Rept. 105-409, at 25.
107 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. Nazarove v. INS, 171 F.3d 478, 482-83 (7th Cir. 1999) (“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.’”)).
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The Senate reports, however, explained that in rare circumstances, notice by publication might be
reasonable,108 although if judged by existing due process standards such notice might not have
been adequate in ordinary circumstances.109 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.110
The addition of a timeliness requirement seems to reduce the possibility of “reasonable” but
untimely notification.111 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 has suggested that the “accuracy” modification was made to ensure that victims are kept
advised of schedule changes.112
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.113

108 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.
109 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 & Trust 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.
110 “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.
7302 (2004) (remarks of Sen. Kyl).
111 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, supra note 17, at
242 (statement of Steven T. Twist); see also Senate Hearing IV, supra note 17, at 183; House Hearing IV, supra note
17, at 20 (statement of Steven T. Twist).
112 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 as inadequate because it provided outdated scheduling information).
113 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. See, 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).
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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.114 The section contains no
such explicit provision, but nothing in the section precludes revisitation—other than abandonment
of the earlier explicit provision, perhaps.115
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 [that 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

114 Past proposals had a provision that 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.”).
115 See Turner, 367 F. Supp. 2d at 324 (“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 criminal defendant without a substantive
ruling on whether there exist conditions of release that satisfy the requirements of the Bail Reform Act.”).
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custody for further treatment, or a release pursuant to a habitual sex offender statute,
S.Rept. 108-191, at 35.
Section 3771’s sponsors 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.116
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,117 and at parole proceedings.118
Section 3771(c)(3)’s notification right may be limited when notification would be dangerous.119
The section’s sponsors, however, urged that the limitation be invoked judiciously.120
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.121
Section 3771(a)(3) 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.

116 150 Cong. Rec. 7304 (2004).
117 18 U.S.C. § 3771(a)(4).
118 Id. § 3771(a)(2), (4).
119 Id. § 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.”).
120 150 Cong. Rec. 7303 (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).
121 18 U.S.C. § 3771(a)(3). The limitations of § 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: “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.”
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The Constitution promises the accused a public trial by an impartial jury122 and affords him the
right to be present at all critical stages of the proceedings against him.123 It offers victims no such
prerogatives. Their status is at best that of any other member of the general public and, in fact, the
Constitution screens the accused’s right to an impartial jury trial from the over exuberance of the
public.124
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.”125 The principle has been embodied in
Rule 615 of the Federal Rules of Evidence and in state rules that adopt the federal practice.126
Rule 615, however, lists among its exceptions, the fact that the witness’s presence at trial is
authorized by statute, and Section 3771(3) qualifies under that exception.127 Section 3771(a)(3)’s
attendance-right language 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.” 128 Section 3771 also operates in conjunction with 18 U.S.C.

122 “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).
123 United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999) (citing United States v. Gagnon, 470 U.S. 522, 526
(1985); Faretta v. California, 422 U.S. 806, 819 n.15 (1975)).
124 Woods v. Dugger, 923 F.2d 1454, 1459-60 (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.” Norris, 918 F.2d at 832.
125 VI WIGMORE ON EVIDENCE §§ 1837, 1838 (1940 ed.).
126 FED. 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.”).
127 In re Mikhel, 453 F.3d 1137, 1138-39 (9th Cir. 2006); United States v. Edwards, 526 F.3d 747, 757-58 (11th Cir.
2008); United States v. Pirk, 284 F. Supp. 3d 448-50 (W.D.N.Y. 2018).
128 42 U.S.C. § 10606(b)(4) (2000 ed.), repealed by P.L. 108-405, § 102(c), 116 Stat. 2264 (2004), although still cross
referenced in 34 U.S.C. § 20141 which appeared as 42 U.S.C. § 1607 (2000 ed.) prior to its transfer to Title 34.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

§ 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.129 In other
federal criminal cases, victims may be excluded from trial only as constitutionally required130 or
by operation of Section 3771(a)(3).131
Section 3771(a)(3) is more limited than the constitutional amendment proposals, which with early
exceptions afforded a general right not to be excluded.132 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.133 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.134
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.135 It suggests that a victim has
little ground to object if a decision is made to close a traditionally public proceeding.

129 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 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 held that victim-witnesses had no standing based on 42 U.S.C. § 10606 to
seek mandamus in order to overturn the lower court’s sequestration order. United States v. McVeigh, 106 F.3d 325,
334-35 (10th Cir. 1997).
130 18 U.S.C. § 3510(a).
131 Id. § 3771(a)(3) (“A crime victim has the following right: . . . (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 as that proceeding.”) (emphasis added).
132 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 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).
133 S.Rept. 108-191, at 35-36; S.Rept. 106-254, at 31; S.Rept. 105-409, at 26. See also 150 Cong. Rec. 7302 (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).
134 S.Rept. 108-191, at 36; S.Rept. 106-254, at 31, S.Rept. 105-409, at 26.
135 “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).
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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.136
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.137 At least initially, Section
3771(a)(3) apparently did not serve as a source for successful defendant objections to the
attendance of victim/witnesses in judicial proceedings.138
Participation
The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.139
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 in which it may be invoked with greater particularity:
“public proceeding”; “in the district court”; “involving release, plea, sentencing, or [] parole.”
When the section speaks of the right to be “reasonably” heard, it seems to contemplate the
exercise of judicial control consistent with this and other rights. It is in these respects and others
very much like the amendment proposals in the 108th Congress.140
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 the 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

136 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.”).
137 In re Mikhel, 453 F.3d 1137, 1139 (9th Cir. 2006); United States v. Edwards, 526 F.3d 747, 757-58 (11th Cir.
2008); United States v. Pirk, 284 F. Supp. 3d 445, 449 (W.D.N.Y, 2018).
138 Edwards, 526 F.3d at 757-58; United States v. Charles, 456 F.3d 249, 257-60 (1st Cir. 2006).
139 18 U.S.C. § 3771(a)(4). Section 3771(d)(2)’s limitations 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: “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.”
140 “A victim of violent crime shall have the right to . . . reasonably be heard at public release, plea, sentencing,
reprieves, and pardon proceedings.” S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
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an opportunity to present relevant information.141 Section 3771’s legislative history is silent on
the question, but any contrary construction would appear to have constitutional implications.142
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
present, and to submit a statement.”143 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[s] 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’s wishes, or otherwise assert affirmative effort to make it possible
for a victim to attend proceedings. 144
The Senate Committee report specifically denied that the language in the proposed amendment
was intended to create a right to transportation to the trial,145 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;146 at

141 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 in deciding
whether to accept a plea.”); S.Rept. 106-254, at 32, 33 (2000); S.Rept. 108-191, at 36, 37 (2003).
142 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.”).
143 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.).
144 House Hearing V, supra note 17, at 79 (statement of James Orenstein).
145 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.”).
146 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
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least in a bail context, another district court believes it includes no such right and that courts may
limit the presentation to written presentations;147 and in yet a third view, an uncertain member of
the appellate panel suggests that reason may limit the right in some sentencing contexts.148
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
an independent participant in the proceedings.149
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.150 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.”151 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.”152
Public Court Release Proceedings
Section 3771 and the amendment proposals have spoken of the right to be heard in “release”
proceedings from the beginning.153 There seems to be little dispute that the term contemplates 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 to 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.”); see also United States v. Messina, 806 F. 3d 55, 65 (2d Cir. 2015) (finding no procedural error in allowing
family victims to be heard through a video presentation).
147 United States v. Marcello, 370 F. Supp. 2d 745, 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.”).
148 Kenna, 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.”).
149 150 Cong. Rec. 7302 (2004) (remarks of Sen. Kyl) (emphasis added).
150 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.”).
151 House Hearings V, supra note 17, at 41 (statement of Steven J. Twist); Senate Hearings V, supra note 17, at 253.
152 150 Cong. Rec. 7302 (2004) (remarks of Sen. Kyl).
153 H.J.Res. 173 (104th Cong.) (“to comment at any such proceeding involving the possible release of the defendant
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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.154 Later versions simply conveyed a right to be heard at public release
proceedings.155 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.156 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. It 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 a 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.157

from custody”); S.J.Res. 52 (104th Cong.) (“to be heard at any proceeding involving . . . a release from custody”).
154 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 conditional 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.).
155 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.).
156 Cf. Senate Hearing V, supra note 17; House Hearing V, supra note 17, 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, supra note 17, at 186-87; House Hearing IV, supra note 17, at 22 (statement of
Steven T. Twist).
157 S.Rept. 106-254, at 32; S.Rept. 105-409, at 27.
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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).158
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 victim’s views before it ruled on a
motion to dismiss charges, a “proposed change [that] would implement a victim’s right to be
‘treated with fairness’ and to be heard at any proceeding ‘involving release’ of the defendant.”159
The same logic would appear to support a victim’s right to be heard in suppression hearings and
other pretrial motions.
Section 3771(a)(4)’s reach does not seem to extend to all proceedings, regardless of how
expansively “release” is construed. 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 court’s discretion.160 The right attaches to public proceedings “in the
district court.” Section 3771(a)(4), in theory, therefore, does not apply in appellate proceedings
whether relating to bail or otherwise. Section 3771(d)(3), however, affords victims the right to
seek appellate review from a denial of their rights in the form of mandamus. Section
3771(b)(2)(a) affords them the right to be heard in habeas proceedings.
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.161

158 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.”).
159 Cassell, supra note 31, at 918.
160 Cf. 150 Cong. Rec. 7302 (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 as 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).
161 United States v. Turner, 367 F. Supp. 2d 319, 336 (E.D.N.Y. 2005) (“A defendant’s initial appearance pursuant to
Fed. R. Crim. P. 5 is in 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.’ Fed .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
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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.162 Plea
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,163 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;164 forfeiture concessions;165
testimonial immunity;166 entry into a witness protection program;167 and informant’s rewards,168
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;169
and/or one that changes the legal playing field so that the victim has become the principal target
of prosecution.170
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).171 The right clearly does not vest a victim with the right to participate in

right to request reconsideration of relevant decisions made in their absence—reasonably balances the competing
interests at stake.”).
162 ADMIN. OFF. OF THE U.S. CTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, table D-4 (2019) (only 1,663 of
the 78,767 defendants, convicted of federal crimes in the year ending in September 30, 2019, were found guilty by a
judge or jury following a criminal trial; the rest pled guilty.).
163 In addition to extraordinarily broad discretion to initiate or abandon a prosecution, see 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.
See, e.g., 18 U.S.C. § 3553(b) (federal court may depart from the federal sentencing guidelines upon the motion of the
prosecutor); id. § 3553(e) (federal court may sentence a defendant below an otherwise mandatory minimum term of
imprisonment upon the motion of the prosecutor).
164 E.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).
165 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).
166 E.g., 18 U.S.C. §§ 6001-6005 (witness immunity).
167 E.g., id. § 3521 (witness relocation and protection).
168 E.g., id. § 3059 (rewards); id. § 3059A (rewards for crimes against financial institutions); id. §§ 3071-3077 (rewards
for information relating to terrorism).
169 “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.” Sarah N. Walling, Victim Participation in Plea Bargains, 65 WASH. U. L. Q. 301, 307-08 (1987).
170 See David M. Posner, The Proper Standard for Self-Defense in New York: Should People v. Goetz Be Viewed as
Judicial Legislation or Judicial Restraint, 39 SYRACUSE L. REV. 845 (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).
171 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
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plea negotiations between the defendant and the prosecutor, which are neither public nor
proceedings.172 By the same token, the right to be heard is not the right to decide; victims must be
heard, but their views are not necessarily controlling.173 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 a sentence was imposed upon a
convicted defendant. The victim’s right to bring the crime’s impact upon him to the court’s
attention 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.174 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.175
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.”176 Section 3771 cannot trump a defendant’s
constitutional rights, if the two cannot be accommodated.177 Payne, however, spoke to the Eighth
Amendment considerations that apply in a capital case. Eighth Amendment limitations in a
noncapital context are not necessarily the same.178

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.
172 Cf. In re W.R. Huff Asset Mgmt. Co., 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.”).
173 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, supra note 17, at 187; House Hearing IV, supra note 17, at 22-23 (statement of Steven J. Twist) (quoting S.Rept.
106-254, at 33 (“[T]he 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.”)).
174 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), the Court repudiated Booth and declared that victim impact statements were not inherently suspect.
175 Payne, 501 U.S. at 830, 830 n.2.
176 Harris v. Sharp, 941 F.3d 962, 1006-07 (10th Cir. 2019); see also United States v. Brown, 441 F.3d 1330, 1351
(11th Cir. 2006); Humphries v. Ozmint, 397 F.3d 206, 217 (4h Cir. 2005); United States v. Bernard, 299 F.3d 467, 480
(5th Cir. 2002); Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999).
177 See United States v. Yamashiro, 788 F.3d 1231, 1234-36 (9th Cir. 2015) (remanding for resentencing when the trial
court, for the convenience of victims, had allowed them to present impact statements even though defense counsel had
not arrived).
178 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
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In non-capital cases, as noted earlier, the sponsors of the legislation seem to have anticipated that
the participation right included the right to be heard orally, except perhaps when a court faced an
overwhelming number of victims at the sentencing of a single defendant in which case recourse
to Section 3771(d)(2) might be appropriate.179 Thus far, the courts seem to concur.180 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.181 Nor
does it include a right to disclose the content of the presentence report.182
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; the same is true of felonies committed in violation of the laws of the District of Columbia
after August 5, 2000.183 The parole laws in effect prior to those dates continue to apply with
respect to federal offenses committed before November 1, 1987, and to felonies under the laws of
the District of Columbia committed before August 5, 2000. Sections 3771(a)(2) and (a)(4),
nevertheless, entitle victims to notification of and an opportunity to be heard at any parole hearing
conducted for pre-abolition offenders.
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,184 and the power is exercised through an administrative process that does not
involve public court proceedings.185 Section 3771(a)(2) entitles victims to notice of the release of
the prisoner pursuant to the President’s pardoning power.

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.”).
179 18 U.S.C. § 3771(d)(2) (“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 the chapter that does not unruly complicate or prolong the proceedings.”).
180 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 to 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 id. 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.”).
181 United States v. Burkholder, 590 F.3d 1071, 1074-76 (9th Cir. 2010).
182 In re Siler, 571 F.3d 604, 609-10 (6th Cir. 2009).
183 Congress abolished parole for those convicted of federal crimes committed after November 1, 1987, P.L. 98-473, 98
Stat. 2027 (1984), and provided for the District of Columbia to do so in P.L. 105-33, § 11212, 111 Stat. 741 (1997).
184 U.S. CONST. art. II, § 2, cl. 1.
185 28 C.F.R. §§ 0.35, 0.36.
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For federal crimes committed after November 1, 1987 (after August 5, 2000 for D.C. offenses),
Congress replaced parole with supervised release, a term of supervision after release from prison
that courts impose initially at the time of sentencing.186 As noted elsewhere, victims have a right
to be reasonably heard at sentencing.187
Confer
The reasonable right to confer with the attorney for the Government in the case.188
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.189
Initially, at least some courts appeared to believe that the exercise of the right must be self-
initiated.190 The obligation, however, rests with the government, and the courts are bound to
ensure that it is honored.191 Even before Congress made application more explicit, case law

186 18 U.S.C. § 3583; see generally CRS Rept. CRS Report RL31653, Supervised Release (Parole): An Overview of
Federal Law, by Charles Doyle.
187 18 U.S.C. § 3771(a)(4); United Sates v. Ramos, 979 F.3d 994, 1002 (2d Cir. 2020) (“But while Ramos argues that
the victim statements were ‘excessive’ . . . and inappropriately influenced the district court’s decision, it cannot be said
that the district court abused its discretion simply by permitting these victims to share how Ramos’s actions impacted
their lives. For one thing, the Crime Victims’ Right Act expressly guarantees the right of victims . . . to be reasonably
heard . . . .”); United States v. Diggles, 957 F.3d 551, 558 n.3 (5th Cir. 2020) (“In-court pronouncement of
discretionary conditions [of supervised release] does not just allow defendant an opportunity to opine on the propriety
and scope of a condition. The requirement furthers a victim’s right ‘to be reasonably heard’ about what conditions
would help protect them. 18 U.S.C. § 3771(a)(4); see also. FED. R. CRIM. 32(i)(4)(B).”); United States v. Gierbolini-
Rivera, 900 F.3d 7, 14 n.8 (1st Cir. 2018) (“We also reject Gierbolini’s contention that the district court was
‘influenced by the presence of the victim in court and the unwarranted intervention of his lawyer.’ Who despite
acknowledging that he did not ‘have a right to intervene in the matter’ as a ‘criminal matter,’ nevertheless addressed the
court. Contrary to Gierbolini’s contentions, pursuant to 18 U.S.C. § 3771(a)(4), the victim had the right not only to
attend the public proceeding, but also to be ‘reasonably heard.’”).
188 18 U.S.C. § 3771(a)(5). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding
provision.
189 150 Cong. Rec. 7302 (2004) (remarks of Sens. Feinstein and Kyl) (emphasis added).
190 In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005) (“[N]o petitioner has alleged that it asked the
Government to confer with it and was denied the opportunity to do so.”). It appears that the Government satisfies its
obligation by conferring with the victim’s attorney. Cf. Jordan v. Dep’t of Justice, 173 F. Supp. 3d 44, 52 n.6 (S.D.N.Y.
2016).
191 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
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suggested that the right to confer attached before formal charges had been filed, and that the
failure to confer might provide a victim with the right to have an unconferred plea agreement set
aside, as noted earlier.192 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.193
Restitution
The right to full and timely restitution as provided in law.194
Section 3771’s restitution language, like that of many of its other elements, is reminiscent of the
constitutional amendment proposals in the 108th and 107th Congresses, which spoke of a right
“to full and timely restitution.”195 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 that
could be subject to several interpretations.
The first victims’ rights proposals promised either a right “to an order of restitution from the
convicted offender,”196 or a right “to full restitution from the convicted offender.”197 Subsequent
proposals opted for the right to a restitution order.198 The proposals appeared to make restitution
orders mandatory as a matter of right. The scope of the right was unstated. Although the proposals

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.”); United States v. Stevens, 239 F. Supp. 3d.
417, 421-22 (D. Conn. 2017) (“Just what does this right to confer mean? Surely it must mean more than that a
prosecutor need only answer phone calls or emails if a traumatized victim has the verve to initiate a conversation with
the prosecutor about the case. Instead, the right to confer with the prosecutor should be read in light of one of the
CVRA’s primary purposes: to give victims a meaningful voice in the prosecution process. In my view, the CVRA’s
right to confer with the prosecutor requires at the least that a prosecutor take reasonable steps to consult with a victim
before making a prosecution decision that a prosecutor should reasonably know will compromise the wishes and
interests of the victim.”).
192 In re Dean, 527 F.3d at 394 (recognizing the right to confer prior to the filing of charges); Stevens, 239 F. Supp. 3d
at 425 & n.8 (refusing to accept an unconferred plea bargain even if mistaken that Section 3771 required that result);
Does v. United States, 817 F. Supp. 2d 1337, 1342 (S.D. Fla. 2011) (“The United States argues that . . . the CVRA
applies only after formal charges are filed. The Court finds this argument unavailing.”); subsequently Doe v. United
States, 950 F. Supp. 2d 1262, 1267 (S.D. Fla. 2013) (“[T]he court finds that the CVRA is properly interpreted to
authorize the rescission or ‘re-opening’ of a prosecutorial agreement—including a non-prosecution arrangement—
reached in violation of a prosecutor’s conferral obligations under the statute.”); and after the death of the accused the
court, in Doe v. United States, 411 F. Supp. 3d 1321, 1332 (S.D. Fla. 2019), observed: “So, despite Petitioners having
demonstrated that the Government violated their rights under the CVRA, in the end, they are not receiving much, if
any, of the relief they sought [i.e., restitution from the government, access to grand jury material, etc.].”
193 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).
194 18 U.S.C. § 3771(a)(6). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no comparable
provision.
195 S.J.Res. 1 (108th Cong.), H.J.Res. 48 (108th Cong.), S.J.Res. 35 (107th Cong.), H.J.Res. 91 (107th Cong.).
196 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”).
197 H.J.Res. 174 (104th Cong.); S.J.Res. 52 (104th Cong.).
198 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).
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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.199
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 indicate
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.”200
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.201 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.202
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.203
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

199 This construction might have drawn some support from the observation in the Senate report that, with respect to this
language in an earlier proposal: “The 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.
200 S.Rept. 106-254, at 37; S.Rept. 105-409, at 31.
201 S.Rept. 108-191, at 41; S.Rept. 106-254, at 37; S.Rept. 105-409, at 32.
202 Wheat v. United States, 486 U.S. 153, 159 (1988); United States v. Monsanto, 491 U.S. 600, 616 (1989) (“[I]f 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
frustrating that end by dissipating his assets prior to trial.”).
203 House Hearing IV at 27 (statement of Steven J. Twist).
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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.204
Historical 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.205 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.”206
Reasonable Freedom from Delay
The right to proceedings free from unreasonable delay.207
The U.S. Constitution guarantees those accused of a federal crime a speedy trial;208 the due
process clause of the Fourteenth Amendment makes the right binding upon the states,209 whose
constitutions often have a companion provision.210 The constitutional right is reinforced by statute
and rule in the form of speedy trial laws in both the federal and state realms.211
“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

204 Compare United States v. Martinez, 978 F. Supp. 1442 (D. N.M. 1997) (refusing to issue mandatory restitution
order for the benefit of illegal Indian casino that 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).
205 150 Cong. Rec. 7302 (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.”).
206 In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 563 (2d Cir. 2005); see also United States v. Atl. 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). 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).”).
207 18 U.S.C. § 3771(a)(7). 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.”
208 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. CONST. amend.
VI.
209 Klopfer v. North Carolina, 386 U.S. 213 (1967).
210 E.g., R.I. CONST. art. 1, § 10; S.C. CONST. art. I, § 14.
211 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.
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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.”212
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.213
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.214 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.215
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
suggested that perhaps the standards used to judge the defendant’s constitutional speedy trial right
govern here as well.216
In the beginning, proposals sometimes actually spoke of a victims’ speedy trial right,217 and in
other instances preferred to describe it as the right to have “proceedings resolved in a prompt and
timely manner.”218 Proposals in the 105th Congress continued the split, some focused on the
beginning and completion of trial; others on a finality of the proceedings.219 In the following
Congress, the proposals all called for “consideration of the victim’s interest in a trial free from
unreasonable delay.”220 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

212 Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects of Utah’s Victims’ Rights Amendment,
1994 UTAH L. REV. 1373, 1402.
213 E.g., Deborah P. Kelly, Victims’ Perceptions of Criminal Justice, 11 PEPPERDINE L. REV. 15, 19-20 (1984); contra
Lynne N. Henderson, The Wrongs of Victim’s Rights, 37 STAN. L. REV. 937, 974-77 (1985).
214 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.
215 42 U.S.C. § 10606 n. (“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.”).
216 H.J.Res. 174 (104th Cong.) (“[T]he 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).
217 H.J.Res. 174 (104th Cong.); S.J.Res. 52 (104th Cong.).
218 H.J.Res. 173 (104th Cong.) (“[A]ny 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.”).
219 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.”) (emphases added in each instance).
220 H.J.Res. 64 (106th Cong); S.J.Res. 3 (106th Cong.).
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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.”221 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 too 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.222
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?”223 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 proceedings,” not to matters of scheduling, motions, and other
pretrial and trial proceedings that 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, (a)(7), which provides crime victims 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 any decision to continue a criminal case should
include reasonable consideration of the rights under this section.224

221 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
222 S.Rept. 108-191, at 19 (2003).
223 House Hearing V, supra note 17, at 81 (statement of James Orenstein).
224 150 Cong. Rec. 7302-03 (2004) (remarks of Sen. Feinstein).
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The case law indicates the courts are sensitive to victims’ interest in delay avoidance;225 that in
some instances delay may be in the interest of at least some victims;226 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.”227
Fairness, Dignity, and Privacy
The right to be treated with fairness and with respect for the victim’s dignity and privacy.228
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,229 and a similar right is featured in many of the state constitutional and statutory
victims’ rights provisions.230 Only victims, however, may claim the right.231 Yet Section

225 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); United States v.
Sampson, 68 F. Supp. 3d 233, 237 (D. Mass. 2014) (“The district court, therefore, has broad discretion in deciding
whether the continuance of a trial date is justified and, if so, the reasonable length of the continuance. However, the
district court’s discretion is limited by the defendant’s constitutional rights to effective assistance of counsel and to the
testimony of defense witness. The court’s discretion to grant a continuance is also circumscribed by the CVRA, which
provides in pertinent part that the victims of a crime, including family members of a person who has been murdered,
have a right to proceedings free from unreasonable delay.”); Section 3771(a)(7) becomes even more compelling when
the victim is a child witness, see 18 U.S.C. § 3509 (j) (“[T]he court shall make written findings of fact and conclusions
of law when granting a continuance in cases involving a child.”); United States v. Briggs, 431 F. Supp. 3d 1190, 1192
(D. Or. 2018).
226 In re W.R. Huff Asset Mgmt. Co., 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).
227 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.”).
228 18 U.S.C. § 3771(a)(8). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding
provision.
229 42 U.S.C. § 10606 (2000 ed.).
230 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 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 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.M. 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); OR.
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).
231 United States v. Rubicka, 331 F. Supp. 3d 888, 900-01 (D. Minn. 2018) (holding that a shareholder of a victimized
corporation, without more, does not qualify as a victim for purposes of Section 3771(a)(8)); United States v. Ray, 337
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3771(a)(8) and the rationale it reflects have given rise to other victim prerogatives under other
federal statutes and rules.232
Unlike other rights drafted to apply only with respect to public proceedings, the right to be treated
fairly and with respect for a victim’s dignity and privacy applies throughout the criminal justice
process.233 It does not, however, bar the Government or a defendant from advancing legitimate
arguments simply because they might offend the victim.234 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.235 On the other hand, the same considerations may warrant
honoring victims’ requests to be heard on motions to redact their identifying information from
emails to be disclosed on discovery.236
Notice of Plea and Deferred Prosecution Agreements
The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.237
The Justice for Victims of Trafficking Act added this to the inventory of victims’ rights.238 It is
something many understood to be a component of the original right to be heard (i.e., “the right to
be . . . heard at any . . . proceeding . . . involving . . . [a] plea”).239 The Justice Department,
however, believed that the right attached only after a defendant had been formally charged, by
which point plea bargaining has often already been completed.240 The provision is designed to
correct any misunderstanding for the benefit of victims.241 The reference in the new right to a
“timely manner” seems to negate any suggestion that notification may occur after the court has
accepted the plea or deferred prosecution agreement.

F.R.D. 561, 570 (S.D.N.Y. 2020) (noting with respect to defendant’s subpoena for victims’ medical records that “[t]he
statutory language of the CVRA does not give the Government the independent right to assert that information be
maintained confidential on the victim’s behalf when the victim does not ask for it to be kept confidential”).
232 E.g., United States v. Blue, 340 F. Supp. 3d 862, 865 n.2 (D.S.D. 2018) (attributing to Section 3771(a)(8) the
protections an amended FED. R. CRIM. 17(c)(3) affords subpoenaed personal or confidential information about a
victim).
233 United States v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).
234 United States v. Rubin, 558 F. Supp. 2d 411, 427-28 (E.D.N.Y. 2008).
235 In re Simons, 567 F.3d 800, 801 (6th Cir. 2009).
236 United States v. Madoff, 626 F. Supp. 2d 420, 426-27 (S.D.N.Y. 2009).
237 18 U.S.C. § 3771(a)(9).
238 P.L. 114-22, § 113(a)(1), 129 Stat. 240 (2015).
239 18 U.S.C. § 3771(a)(4); Does v. United States, 817 F. Supp. 2d 1337, 1342 (S.D. Fla. 2011) (“The United States
argues that . . . the CVRA applies only after formal charges are filed. The Court finds this argument unavailing.”).
240 U.S. DEP’T OF JUST., OFF. OF LEGAL COUNS., supra note 49, at 1.
241 H.Rept. 114-7, at 7 (2015) (“[I]n 2010, the Justice Department’s Office of Legal Counsel issued an opinion
concluding that the DVRSA does not confer rights on victims of Federal crimes until prosecutors initiate formal
criminal proceedings. . . . This section clarifies Congress’ intent that crime victims be notified of plea agreements or
deferred prosecution agreements, including those that may take place prior to a formal charge.”).
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Notice of Section 3771 Rights and Statutory Services
The right to be informed of the rights under this section and the services described in section 503(c) of
the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. § 10607(c)) and provided contact
information for the Office of the Victims’ Rights Ombudsman of the Department of Justice.242
This, too, the Justice for Victims of Trafficking Act added to the inventory of victims’ rights.243 It,
too, is something that may have been thought implicit from the beginning, given the commands
elsewhere in the statute. Section 3771(c)(1), for example, has declared from the beginning that
“[o]fficers 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).” Section 3771(a)(10) now supplements the command to with an explicit right.
Responsibilities of the Courts
Section 3771(b) assigns federal courts responsibility in two areas. One deals with the obligations
that follow from the rights granted to the victims of crimes under the laws of the United States
and the District of Columbia. The other addresses obligations that federal courts conducting
federal habeas corpus proceedings owe the victims of state crimes.
Generally
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) [relating to victims’ right not to be excluded
from judicial proceedings], 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.244
None of the proposed constitutional amendments featured an equivalent. It has no counterpart in
the earlier federal “best efforts” provision.245 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.246 The trial court’s obligation to “ensure”

242 18 U.S.C. § 3771(a)(10).
243 P.L. 114-22, § 113(a)(1), 129 STAT. 240 (2015).
244 18 U.S.C. § 3771(b)(1). 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.”
245 42 U.S.C. § 10606 (2000 ed).
246 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 and making ‘every effort’ to do so.”); see also United States v. Babich, 301 F. Supp. 3d 213, 216-17 (D. Mass.
2017) (“There is scant case law regarding who qualifies as a crime victim under the CVRA. This court agrees with the
Eastern District of New York’s decision in United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005), which
adopted the ‘inclusive approach’ to determine whether individuals qualified as crime victims under the CVRA.”).
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victims’ rights seems to set its responsibilities a notch above the “best efforts” level of obligation
imposed upon other officials.247
Habeas Corpus
In a Federal habeas corpus proceeding arising out of a State conviction, the court shall
ensure that a crime victim is afforded the rights described in paragraphs (3), (4), (7), and
(8) of subsection (a).248
The history of the proposed constitutional amendments sheds little light on the scope of the
provision since habeas corpus language dropped out of the proposals early on.249 Section
3771(b)(2), moreover, was not part of the original legislation, but was inserted by the Adam
Walsh Act.250 It passed through the legislative process virtually without comment.251
Section 3771(b)(2) provides the victims of state offenses limited rights when the offender seeks
federal habeas corpus relief. It comes with its own, more tightly drawn definition of “victim”:
“‘crime victim’ means the person against whom the State offense is committed, or if that person is
killed or incapacitated, that person’s family member or other lawful representative.”252 It affords
these victims a limited range of rights that relate to matters within the control of the federal
courts: attendance rights; the right to be heard; protection from unreasonable delays; the right to
fair and respectful treatment; and the right to enforce those rights.253 The right to be heard seems
to consist of the right to brief and possibly argue points of law, since the usual form of a victim’s
right to be heard, an impact statement, has no real place in a habeas proceeding.254 In this context,
the victim is treated as an amicus rather than an intervener, at least at the district court level.255
Section 3771(b)(2) vests enforcement authority in the victim or the victim’s representative, but
not in state or federal government officials.256

247 Cf., In re W.R. Huff Asset Mgmt. Co., 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.”); United States v. Madoff, 626 F. Supp. 2d 420, 426 (S.D.N.Y. 2009) (“It is this
Court’s duty, under the Act, to ensure that the victims are afforded their rights.”); United States v. Pirk, 284 F. Supp. 3d
445, 449 (W.D.N.Y. 2018) (acknowledging the courts’ obligations under Section 3771(b)(1)).
248 18 U.S.C. § 3771(b)(2)(A).
249 S.J.Res. 6, § 5 and H.J.Res. 71, § 5 in the 105th Congress would have provided: “The rights established by this
article shall apply in all Federal and State criminal proceedings, including . . . collateral proceedings such as habeas
corpus . . . .” Subsequent amendment proposals would have left the task of reconciling victims’ rights and the
administration of habeas corpus proceedings to post-ratification judicial and legislative action. See, e.g., S.Rept. 108-
191, at 41 (2003) (“These rights shall not be restricted except when and to the degree dictated by a substantial interest
in . . . the administration of justice. . . . The Committee also notes that the administration of justice exception covers
habeas corpus filings and proceedings, including those pursuant to 28 U.S.C. §§ 2254 and 2255 [habeas corpus].”).
250 P.L. 109-248, § 212, 120 STAT. 616 (2006).
251 See H.Rept. 109-218, at 13, 51(2005); 152 Cong. Rec. 2961, 2981 (2006).
252 18 U.S.C. § 3771(b)(2)(D).
253 Id. § 3771(b)(2)(A), (a)(3), (a)(4), (a)(7), (a)(8), (b)(2)(B), (d)(1), (d)(3).
254 E.g., Carter v. Bigelow, 869 F. Supp. 2d 1322 (D. Utah 2011), aff’d and rev’d in part, 787 F.3d 1269 (10th Cir.
2015).
255 E.g., Brandt v. Gooding, 636 F.3d 124, 136-37 (4th Cir. 2011); cf. United States v. Laraneta, 700 F.3d 983, 986 (7th
Cir. 2012) (“[I]t would be a mistake to allow intervention at the district court level . . . . The complications of
intervention are many fewer at the appellate state, where participation is limited to filing briefs and, at the appellate
court’s discretion, participating in oral argument . . . .”).
256 18 U.S.C. § 3771(b)(2)(B).
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Section 3771(b)(2)’s most interesting feature may be the absence of a right to notice. It does not
list a federal right to be notified of federal habeas proceedings among the rights it provides. The
section further absolves federal executive branch officials of any obligations under the habeas
provision.257
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).258
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).259
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.260 The Department of Justice’s implementing regulations create a complaint procedure
and enforcement mechanism to ensure compliance.261 None of the proposed constitutional
amendments had a provision comparable to either of these provisions.
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).262
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.263 Section 3771(d)(1) grants standing to victims and their
representatives, and it 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 it negates

257 Id. § 3771(b)(2)(C).
258Id. § 3771(c)(1). State officials may already be obligated to notify victims pending federal habeas proceedings under
state victims’ rights statutes or constitutional provisions.
259 Id. § 3771(c)(2). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no provision comparable
to either § 3771(c)(1) or § 3771(c)(2).
260 150 Cong. Rec. 7303 (2004) (remarks of Sen. Kyl) (“[W]here 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.”).
261 28 C.F.R. § 45.10.
262 18 U.S.C. § 3771(d)(1).
263 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.).
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somewhat the implication that anyone other than the actual victim enjoys ultimate control of the
victim’s rights.264 Some of the cases note the propriety of prosecutors asserting victims’ rights.265
Finally, the CVRA creates no implicit right to a cause of action for judicial relief “outside the
confines of a preexisting proceeding.”266
Mandamus and Appeal
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, unless the litigants, with the approval of the court, have stipulated
to a different time period for consideration. In deciding such application, the court of
appeals shall apply ordinary standards of appellate review. 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.267

264 150 Cong. Rec. 7303 (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 a 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.”).
265 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, 951 (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.”).
266 In re Wild, 994 F.3d 1244, 1269 (11th Cir. 2021) (en banc).
267 18 U.S.C. § 3771(d)(3) (P.L. 114-22 amendments in italics). 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.268
Section 3371 rather clearly implies that victims have no right to be heard on appeal other than
through mandamus and habeas.269 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.270
Section 3771(d)(3) 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.271 Early constitutional amendment proposals limited the
use of stays272 and later proposals were simply silent on the issue.273
The provision’s Senate sponsors apparently saw the availability of mandamus as a means of
appellate review.274 In other contexts, mandamus is more limited; it is a “drastic and extraordinary
remedy reserved for really extraordinary cases.”275 The federal appellate courts were divided over
this standard applied in the case of victims’ rights.
The Second Circuit 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.”276 It felt,

268 18 U.S.C. § 3771(d)(4). Rule 60(b)(2) of the Federal Rules of Criminal Procedure provides: “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).”
269 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.”).
270 18 U.S.C. § 3771(d)(4), (6) (“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 prosecutorial discretion of the Attorney General or any officer under his direction.”)
(emphasis added); Hunter, 548 F.3d at 1311.
271 18 U.S.C. § 3771(d)(3).
272 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.) (“[N]othing in this article shall provide grounds for the victim to . . . obtain a stay of trial . . . .”).
273 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
274 “MRS. FEINSTEIN. 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.”
“MRS. FEINSTEIN. Mr. President, does Senator Kyl agree?
“MR. KYL. 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
victim’s 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. 7303 (2004)
(remarks of Sens. Feinstein and Kyl).
275 Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004).
276 In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562 (2d Cir. 2005).
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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.”277 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 overreach, the Second
Circuit panel settled on an abuse of discretion standard.278
The Ninth and Eleventh Circuits agreed.279 The Fifth, Sixth, Tenth, and D.C. Circuits did not.
They concluded that when Congress selected mandamus as an avenue of review, it used the term
as it was traditionally understood.280 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.281 Congress resolved the dispute in the Justice for Victims of Trafficking Act.282 The usual
appellate standard, espoused by the Second Circuit, applies.283
The government’s prerogative to assert a victim’s rights includes the right to appeal and to
petition for mandamus relief on a victim’s behalf.284
Limitations
One Accused—Too Many 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.285

277 Id.
278 Id. at 562-63 (citing Pierce v. Underwood, 487 U.S. 552 (1988)).
279 Kenna v. U.S. District Court, 435 F.3d 1011, 1017 (9th Cir. 2006); In re Stewart, 552 F.3d 1285, 1288-89 (11th Cir.
2008).
280 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).
281 Monzel, 641 F.3d at 540-44 (citing in accord United States v. Aguirre-Gonzalez, 597 F.3d 46, 52-55 (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. Aguirre-Gonzalez, 597 F.3d at 55-56.
282 P.L. 114-22, § 113(c)(1), 129 Stat. 240 (2015).
283 18 U.S.C. § 3771(d)(3); In re Brown, 932 F.3d 162, 172 (4th Cir. 2019).
284 18 U.S.C. § 3771(d)(4), (d)(1), (d)(3). 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)(3), which authorizes both the government and victims to bring
mandamus petitions.”); In re Mikhel, 453 F.3d 1137, 1138 n.1 (9th Cir. 2006); 150 Cong. Rec. 21066 (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.”).
285 18 U.S.C. § 3771(d)(2). 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.”
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Section 3771(a)’s rights, including the right to notice, are subject to a limitation when the court
finds it impractical because of the sheer number of victims to fully accommodate them all.286
Section 3771(d)(2) has no counterpart in any of the proposed constitutional amendments. The
committee reports accompanying the amendments acknowledged that the right to “reasonable”
notice might be honored less thoroughly in cases involving hundreds of victims than in cases
involving only a few.287 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.288
Section 3771(d)(2) deals with the challenge more explicitly; both the language used and the
legislative history make it clear that when compelled to invoke the statute, the courts are expected
to adopt alternative procedures in the spirit of the reduced right.289
No New Trial
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.290
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 be granted prospectively; specific
judicial decisions could not be postponed or reopened.291 Later, they yielded a bit and allowed
bail and restitution proceedings to be revisited, but otherwise made the prospective nature of

286 18 U.S.C. § 3771(d)(2).
287 S.Rept. 108-191, at 34 (2003) (“In rare mass victim cases (i.e., those involving hundreds of victims), reasonable
notice could be provided by means tailored to those unusual circumstances, such as notification by newspaper or
television announcement.”); S.Rept. 106-254, at 30 (2000).
288 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 handling 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.”).
289 150 Cong. Rec. 7303-04 (2004) (remarks of Sen. Kyl and Sen. Feinstein); see also In re Dean, 527 F.3d 391, 394-95
(5th Cir. 2008) (circuit court rejecting 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 observing that “[t]he 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
[§ 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.”); see also United States v. Tonawanda Coke Corp., 5 F. Supp.
3d 343, 347-51 (W.D.N.Y. 2014); United States v. BP Prods. N. Am. Inc., 610 F. Supp. 2d 655, 669 (S.D. Tex. 2009).
290 18 U.S.C. § 3771(d)(5). Rule 60(b)(6) of the Federal Rules of Criminal Procedure likewise states: “A failure to
afford a victim any right described in these rules is not grounds for a new trial.”
291 S.J.Res. 65 (104th Cong.) (“[N]othing in this article shall provide grounds for the victim to challenge a charging
decision or a conviction, obtain a stay of trial, or compel a new trial.”); H.J.Res. 71 (105th Cong.).
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relief even more explicit.292 Finally, they simply left the question for legislative resolution except
for a prohibition on new trials.293
Section 3771(d)(5) provides the safeguard for a different reason. Double jeopardy would not bar a
new trial in the case of a clash with a victim’s statutory right. 294 However, in the absence of such
a clause, ordering a new trial for denial of a victim’s right might afford a convicted defendant a
second chance at acquittal.295
Section 3771(d)(5) limits the opportunity to revisit plea and sentencing proceedings.296 It says
nothing about bail, restitution, or other trial proceedings, all of which are thus presumably subject
to the statute’s expedited, five-day stay and mandamus procedure. Moreover, on its face it permits
a plea agreement when the accused has pled to the highest crime charged,297 but should the
agreement be reopened, the statute promises the victim no more than the right to advise the court
on the question of whether the agreement should be accepted.298
Section 3771(d)(5)’s 14-day deadline is not jurisdictional and does not preclude a petition for
mandamus relief from a lower court’s denial of victim restitution.299
No Damages and Prosecutorial Discretion
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.300
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
impair prosecutorial discretion. The constitutional amendment proposals generally included a
similar ban on damages.301 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.302 Section

292 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.”).
293 H.J.Res. 91 (107th Cong.); S.J.Res. 1 (108th Cong.).
294 See also 150 Cong. Rec. 7304 (2004) (remarks of Sen. Feinstein) (“This provision demonstrates that victim’s rights
are not intended to be, nor are they, an attack on defendants’ protections against double jeopardy.”).
295 Id.
296 It does, however, permit a court to rescind or reopen a non-prosecution agreement in response to the government’s
failure to confer with the victim. See Doe 1 v. United States, 359 F. Supp. 3d 1201, 1221-22 (S.D. Fla. 2019).
297 United States v. Rubin, 558 F. Supp.2d 411, 423 (E.D.N.Y. 2008).
298 Id. at 424.
299 Fed. Ins. Co. v. United States, 882 F. 3d 348, 360 (2d Cir. 2018).
300 18 U.S.C. § 3771(d)(6).
301 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.”).
302 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.”);
S.Rept. 105-409, at 35 (1998); S.Rept. 106-254, at 41(2000).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

3771’s sponsors 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.303 Other Members regretted the fact that the section makes no provision for the
appointment of counsel for indigent victims.304
Since then, the courts have confirmed that the statute creates no cause of action for damages
against the United States or its officials;305 negates the possibility of a Bivens306 action; and
provides no grounds for a claim against the United States.307
At first glance, damages and prosecutorial discretion might seem an odd pairing, but they both
limit the remedies available for a violation of a victim’s rights. Moreover, some of the early
proposals to establish a constitutional victims’ rights amendment grouped damages and
prosecutors’ charging authority with other limitations.308 None of them, however, featured the
broad prosecutorial discretion shield now found in the statute. The House Judiciary Committee
added the prosecutorial discretion language late in the legislative process, perhaps at the behest of
the Justice Department,309 and it passed without comment.310
Section 3771(d)(6)’s prosecutorial discretion limitation, in the words of the courts, “gives victims
a voice, not a veto,”311 but that does not mean that victims’ rights stand at the prosecutor’s
convenience or that only the prosecutor’s voice will be heard.312 Nevertheless, it precludes

303 150 Cong. Rec. 7301 (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 . . . .”).
304 150 Cong. Rec. 7306 (2004) (remarks of Sen. Leahy).
305 Cunningham v. U.S. Dep’t of Just., 961 F. Supp. 2d 226, 241 (D.D.C. 2013).
306 Kelley v. Fed. Bureau of Investigation, 67 F. Supp. 3d 240, 274-75 (D.D.C. 2014). The Supreme Court in Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971), recognized a limited implied cause of action for damages on the
basis of certain constitutional violations. Section 3771’s explicit prohibition precludes a Bivens suit, the court in Kelley
held, even when a claim of a statutory victims’ rights violation is coupled to a claim of a constitutional violation.
307 Turpin v. United States, 119 Fed. Cl. 704, 708 (2015); see also Doe v. United States, 411 F. Supp. 3d 1321, 1330-31
(S.D. Fla. 2019) (The CVRA does not authorize the court to order the Government to pay victim restitution for the
prosecution’s failure to confer before entering into a non-prosecution agreement.).
308 E.g., S.J.Res. 6 (105th Cong.), §2 (“[N]othing in this article shall provide grounds for the victim to challenge a
charging decision or a conviction; to obtain a stay of trial; or to compel a new trial. Nothing in this article shall give rise
to a claim for damages against the United States, . . . or provide grounds for the accused or convicted offender to obtain
any form of relief.”); H.J.Res. 71 (105th Cong.), §2 (same).
309 H.Rept. 108-711, at 122 (2004) (“Chairman Sensenbrenner . . . The bill is not identical to the Senate bill . . . , but it
is close. Since Senate passage, the Committee has worked with many interested parties on the issues . . . .”).
310 See 150 Cong. Rec. 21053-88 (2004) (House); 150 Cong. Rec. 22951-55 (2004) (Senate).
311 United States v. Rubin, 558 F. Supp. 2d 411, 418 (E.D.N.Y. 2008); see also Jordan v. Dep’t of Just., 173 F. Supp.
3d 44, 51 (S.D.N.Y. 2016); Jane Doe #1 v. United States, 950 F. Supp. 2d 1262, 1268 (S.D. Fla. 2013) (“What the
government chooses to do after a conferral with the victims is a matter outside the reach of the CVRA, which reserves
absolute prosecutorial discretion to the government.”); United States v. Thetford, 935 F. Supp. 2d 1280, 1282 (N.D.
Ala. 2013).
312 In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (“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
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

enforcing a victim’s demand that prosecutors initiate forfeiture proceedings,313 or prosecute
additional charges for which an individual believes he is a victim.314
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.315
Section 3371(f) instructs the Attorney General to promulgate regulations that designate 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
October 2011.316 The Department issued the regulations called for in Section 3771(f) on
November 17, 2005.317
18 U.S.C. § 3771 (text) (Language Added by P.L. 114-
22 in Italics)
(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.

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) (“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.”).
313 In re Stake Ctr. Locating, Inc., 731 F.3d 949, 951 (9th Cir. 2013); United States v. Thetford, 935 F. Supp. 2d 1280,
1285 (N.D. Ala. 2013).
314 United States v. Thuna, 382 F. Supp. 3d 166, 170 n.2 (D.P.R. 2019) (“While the claimant seeking victim status may
believe that a defendant should have been charged with an additional or different crime, the CVRA clearly states that
‘nothing in this [statute] shall be construed to impair the prosecutorial discretion of the United States.’”); United States
v. Nix, 256 F. Supp. 3d 272, 279 (S.D.N.Y. 2017) (defendant, who believes that one of the members of the jury that
convicted him lied about his past criminal record, is not entitled to relief under the CVRA of prosecution of the
wayward juror for perjury.).
315 18 U.S.C. § 3771(f)(1).
316 (1) U.S. DEP’T OF JUST., OFF. OF JUST. PROGRAMS, OFF. 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) U.S.
DEP’T OF JUST., OFF. OF JUST. PROGRAMS, OFF. OF VICTIMS OF CRIME, ATTORNEY GENERAL GUIDELINES FOR VICTIM AND
WITNESS ASSISTANCE (rev. May 2012), available at http://www.justice.gov/sites/default/files/olp/docs/
ag_guidelines2012.pdf.
317 70 Fed. Reg. 69,653 (2005) (codified at 28 C.F.R. § 45.10).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

(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.
(9) The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.
(10) The right to be informed of the rights under this section and the services described in
section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10607(c)) and
provided contact information for the Office of the Victims’ Rights Ombudsman of the
Department of Justice.
(b) RIGHTS AFFORDED. –
(1) IN GENERAL. – 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.
(2) HABEAS CORPUS PROCEEDINGS. –
(A) IN GENERAL. – In a Federal habeas corpus proceeding arising out of a State conviction, the
court shall ensure that a crime victim is afforded the rights described in paragraphs (3), (4), (7),
and (8) of subsection (a).

(B) ENFORCEMENT. –
(i) In general. – These rights may be enforced by the crime victim or the crime victim’s lawful
representative in the manner described in paragraphs (1) and (3) of subsection (d).
(ii) Multiple victims. – In a case involving multiple victims, subsection (d)(2) shall also apply.

(C) LIMITATION. – This paragraph relates to the duties of a court in relation to the rights of a
crime victim in Federal habeas corpus proceedings arising out of a State conviction, and does not
give rise to any obligation or requirement applicable to personnel of any agency of the Executive
Branch of the Federal Government.

(D) DEFINITION. – For purposes of this paragraph, the term “crime victim” means the person
against whom the State offense is committed or, if that person is killed or incapacitated, that
person’s family member or other lawful representative.
(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).
(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. –
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

(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, unless the litigants, with the approval of the court, have stipulated
to a different time period for consideration. In deciding such application, the court of
appeals shall apply ordinary standards of appellate review. 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:
(1) COURT OF APPEALS. – The term “court of appeals” means –
(A) the United States court of appeals for the judicial district in which a defendant is being
prosecuted; or
(B) for a prosecution in the Superior Court of the District of Columbia, the District of
Columbia Court of Appeals.
(2) CRIME VICTIM –
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

(A) IN GENERAL. – 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.
(B) MINORS AND CERTAIN OTHER VICTIMS. – 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.
(3) DISTRICT COURT; COURT. – The terms “district court” and “court” include the Superior
Court of the District of Columbia.
(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.
Federal Rule of Criminal Procedure 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.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771

(1) Time for Deciding a Motion. The court must promptly decide any motion asserting a
victim’s rights described in these rules.
(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 Information

Charles Doyle

Senior Specialist in American Public Law

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