Statements On Introduced Bills And Joint Resolutions

Floor Speech

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - June 29, 2007)

BREAK IN TRANSCRIPT

Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights Rules Act, which would continue the work started in The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act.

The bill would make comprehensive procedural changes to the Federal Rules of Criminal Procedure to protect crime victims' rights throughout the federal criminal process, thereby guaranteeing that crime victims' rights will be fully respected in our federal courts.

As one of the Senate sponsors of the CVRA, I know that Congress intended the Act to bring dramatic changes to the way that the federal courts treat crime victims. Fortunately, in the two-and-a-half years since that legislation became law, positive strides have been made for crime victims. For example, with funding provided by act, the National Crime Victims Law Institute has been able to support crime victims' legal clinics around the country. I am also encouraged that court decisions have recognized the importance of crime victims' rights in the process.

But while progress has been made in implementing the CVRA, at least one important step remains to be taken: The Federal Rules of Criminal Procedure must be comprehensively amended to recognize the rights of crime victims throughout the process.

The Federal rules have been described as ``the playbook'' for Federal judges, prosecutors, and defense attorneys. Currently, the Federal rules make virtually no mention of crime victims. If crime victims are to fully integrated into the daily workings of our criminal justice process, then their role in that process must be fully protected in the federal rules.

I am encouraged to see that the Federal courts have been taking some modest steps toward protecting crime victims in the Federal rules. Federal district court judge Paul Cassell initiated the process by recommending rule changes to the Advisory Committee on Criminal Rules. His comprehensive set of useful proposals appeared in an excellent law review article published in The Brigham Young University Law Review in 2005. In recent months, the Advisory Committee has adopted a few of his proposals to implement some aspects of the CVRA. These changes are expected to take effect next year.

These amendments are positive, but far more remains to be done. The Advisory Committee's six proposed amendments, five changes to existing rules and one new rule, do little more than reiterate limited parts of the statute. Crime victims have been treated unfairly in the Federal criminal justice system for far too long to be left to rely on a handful of minimal protections. To respect crime victims' rights fully in the process, it is necessary to take more decisive and comprehensive action to thoroughly amend the rules.

When Congress passed the CVRA in 2004, it promised that crime victims would have rights throughout the criminal justice process. Of particular importance, the CVRA guaranteed that crime victims would have the right to be treated with ``fairness.'' My proposed amendments would add to the Federal rules the changes needed to treat crime victims fairly. These changes to the rules would provide vital protections for crime victims without interfering with the rights of criminal defendants or the need for Federal judges to manage their dockets effectively.

One example of the bill's changes is the amendment to Rule 50 to protect the victims' right to a speedy trial. The bill would amend Rule 50 to provide: ``The court shall assure that a victim's right to proceedings free from unreasonable delay is protected. A victim has the right to be heard regarding any motion to continue any proceeding. If the court grants a motion to continue over the objection of a victim, the court shall state its reasons in the record.''

It is hard for me to see how anyone could object to this procedural change. The CVRA promised to crime victims the right ``to proceedings free from unreasonable delay.'' The bill would place that right into the Federal rules.

Another example of the kind of change that the bill would make is its amendment of Rule 21 to protect crime victims' rights in transfer decisions. In some situations, federal courts can transfer a criminal case from one district to another. The bill would amend Rule 21 to provide: ``The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court shall consider the views of the victim in making any transfer decision.''

It is again hard to understand how anyone could object to the requirement that a judge give a crime victim the chance to be heard before a case is transferred to a distant location. For example, the bill would have protected the right of the Oklahoma City bombing victims to present to the trial judge their views on whether the trial should have been transferred out of Oklahoma and, if so, to where.

The bill does not mandate any particular substantive result, leaving it to the trial judge to make the ultimate determination about whether to transfer a case. But the bill would change the process by which such decisions are made, ensuring that victims are treated fairly by giving them an opportunity to provide their views to the judge.

A further example of the changes in the bill is the amendment to Rule 48 to protect the victim's right to be heard before a case is dismissed. The bill would provide: ``In deciding whether to grant the government's motion to dismiss, the court shall consider the views of any victims.''

With this procedural change, the victim would have the opportunity to present the court any reasons why a case should not be dismissed. This right is implicit in the CVRA's mandate that crime victims be treated with fairness. It is hard to understand how a crime victim is treated with fairness if the court dismisses a case without considering the victim's position on the dismissal.

Indeed, the only case to have considered this issue reached exactly this conclusion. As United States v. Heaton explains,

When the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect the victim's right to be treated fairly and with respect for her dignity is to consider the victim's views on the dismissal. It is hard to begin to understand how a victim would be treated with fairness if the court acted precipitously to approve dismissal of a case without even troubling to consider the victim's views. To treat a person with ``fairness'' is generally understood as treating them ''justly'' and ``equitably.'' A victim is not treated justly and equitably if her views are not even before the court. Likewise, to grant the motion without knowing what the victim thought would be a plain affront to the victim's dignity. U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).

I agree with Heaton that the CVRA requires that crime victims have the opportunity to submit their views to the court on any dismissal. That is why this bill would place this right specifically into the federal criminal rules.

One particularly important part of the bill is its change to Rule 17 to protect the confidential and personal records of crime victims. The Advisory Committee itself proposed an amendment to Rule 17 to create specific procedures for subpoenas directed at confidential and private information concerning crime victims.

This change was designed to prevent a recurrence of the problems that recently occurred in the Elizabeth Smart kidnapping case in Salt Lake City. My colleagues may remember this case, which involved the abduction of a teenaged girl from her home. Fortunately, she was found a year later and the suspected kidnapper apprehended. In the state criminal proceedings that followed, defense attorneys subpoenaed confidential school and medical records about Elizabeth. Because these subpoenas went directly to Elizabeth's school and hospital, she was never given the opportunity to object to them, and some confidential information was improperly turned over to defense counsel.

The Advisory Committee has recognized that this same ``end run'' around the victim could occur under the federal rules. It has therefore adopted a rule requiring notice to crime victims before their personal and confidential information is subpoenaed.

But this seeming protection has a catch: a defendant can avoid giving any notice to victim by arguing to a court, in an ex parte proceeding, that exceptional circumstances exist.

This kind of ex parte procedure raises serious ethical concerns. In fact, the American Bar Association wrote to the Advisory Committee in February urging it to make certain that crime victims receive notice and an opportunity to be heard before such subpoenas issue. As Robert Johnson, Chair of the ABA's Criminal Justice section explained, the canons of judicial ethics forbid ex parte contacts with judges on substantive matters. Mr. Johnson went on to urge the Advisory Committee to give careful consideration of the ethical violations that might occur from ex parte subpoenas:

While the proposed amendment to Rule 17 is intended to protect the interests of crime victims, the ABA urges the Committee to carefully examine the proposal to determine if the proposal regarding Rule 17 would be contrary to the Court's responsibility under Canon 3(B)(7) in allowing ex parte contact on a substantive matter. Even if the Committee decides that it is not a substantive matter, the Committee should consider whether the proposed rule would allow a tactical advantage as a result of the ex parte communication and the judge is required to promptly notify the other party of the substance of the ex parte communication and allow an opportunity to respond.

It seems that the Advisory Committee's proposed rule permitting ex parte subpoenas of personal and confidential information of crime victims in some situations might run afoul of these ethical rules. Accordingly, under the bill, crime victims would enjoy an absolute right to notice before such information as psychiatric and medical records could be subpoenaed. This is the standard process that our adversary system of justice uses.

The CVRA promised crime victims that they would enjoy ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' My bill would respect victims' dignity and privacy by giving them a court hearing before any of their confidential records could be turned over to an offender accused of victimizing them. This is not to say that such information will never be disclosed to the defense. A judge will have to make the determination whether disclosure is appropriate. But the judge would make that determination only after hearing from the prosecutor, defense counsel and most important of all the crime victim whose privacy rights are directly affected.

One of the most significant parts of the bill is its creation of a new Rule 44.1, which would provide: ``When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising their rights as provided by law.''

This important change builds on existing Federal law. Title 28 already permits the court in a criminal case to ``request an attorney to represent any person unable to afford counsel.'' For criminal cases involving child victims, Title 18 U.S.C. section 3509 allows the appointment of a guardian to represent the child's interests. Although the statutes provide these rights, they have yet to be actually implemented so that crime victims can actually take advantage of them.

I want to be clear that I am not proposing that all crime victims should have counsel appointed for them. At the same time, though, I would think all could agree that there are situations where a trial court ought, as a matter of discretion, to have the ability to appoint legal counsel for a crime victim. For example, a crime victim might present a novel or complex claim that the courts have not yet considered. Or a crime victim might suffer from physical or mental disabilities as a result of the crime that would make it difficult for the victim to be heard without the help of an advocate.

For many years, courts have had the ability to appoint counsel for potential defendants on a discretionary basis. My bill would allow that same, well-recognized power to be used to appoint counsel for crime victims.

One last section of the bill deserves special note because it demonstrates the need for Congress to step into the rules process. The bill would amend Rule 32 to guarantee victims the right to speak at sentencing hearings.

This is a change from the more limited right that the Advisory Committee has given victims the right ``to be reasonably heard.'' The Advisory Committee's note to this provision seemingly suggests that courts would not have to give all victims the right to speak at sentencing. This more limited right runs counter to the legislative history as to how the CVRA was to operate. While the CVRA gave crime victims the right to be reasonably heard, it was the undisputed legislative intent that victims would have the right to speak. I explained on the Senate floor at the time the act was under consideration that:

It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court.

My colleague Senator FEINSTEIN remarked at that time that my understanding was her ``understanding as well.''

The Advisory Committee's action also contravenes at least two published court decisions on this issue. In United States v. Kenna, Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative history reveals ``a clear congressional intent to give crime victims the right to speak at proceedings covered by the CVRA.'' And in United States v. Degenhardt, Judge Cassell reached the same conclusion writing for the District of Utah.

My bill would provide the right of victims to speak at sentencing hearings. Of course, prosecutors, defense counsel, and defendants have on enjoyed this right. Crime victims, too, deserve the opportunity to speak to the court to ``allocute'' as this right is called and to make sure that the court and the defendant understand the crime's full harm.

I will not take the time here to go through all of the other provisions of the bill. But I did want to highlight one important note about the appropriateness of Congress acting to amend the rules to protect crime victims. Congress enacted the CVRA in October 2004. In the almost 3 years since then, I have waited patiently to give the federal courts the first opportunity to review the need for rule changes. At the same time, though, I have made clear my position, as one of the cosponsors of the CVRA, that Congress expected significant reforms in the Federal rules. As I explained to my colleagues at that time, the crime victims' community in this country was looking to the CVRA to serve as a model for the states and a formula for fully protecting crime victims. It was because the CVRA was expected to have such a far-reaching impact that the crime victims' community was willing to defer, at least temporarily, its efforts to pass a constitutional amendment protecting victims' rights.

I made this point directly to the advisory committee in a letter I sent to Judge Levi on February 15 of this year. Thus, several months ago, I placed the Advisory Committee on notice that, if it failed to act to fully protect crime victims, Congress might step into the breach.

A few weeks ago, Judge Levi replied to my letter, and I greatly appreciate his comments and explanations. In his reply, he acknowledged that many of the proposals were worthy of close attention. He indicated, however, that the Advisory Committee was going to delay action on them for some indefinite period of time. The reasons he gave for the delay were to:

1. gather more information on precisely how the proposals would operate in specific proceedings and what effects they might have, 2. obtain empirical data substantiating the existence and nature of any problem or problems that could be addressed by rule, and 3. provide additional time for courts to acquire experience under the CVRA and to develop case law construing it.

Judge Levi also suggested that some of the proposed rule changes would have created, in his view, new ``substantive rights'' for crime victims that went beyond the CVRA.

Judge Levi's letter demonstrates why the Rules Enabling Act wisely left the final decision on how to structure rules of evidence and procedure to Congress. The letter refers to the need to ``gather more information'' and ``empirical data'' on crime victims'' issues before proceeding. While some might point out that the Advisory Committee has already had more than 2 1/2 years to collect such data, I can appreciate the difficulty that a court rules committee can have in assessing the scope of a national problem. Congress, however, is already well-informed on the need for protecting crime victims' rights. Congress adopted the CVRA only after 8 years of legislative efforts and hearings on the Crime Victims Rights Amendment. This record leaves Congress well positioned to recognize the need for prompt and effective action to protect crime victims.

The letter also refers to the need for courts to develop case law construing the CVRA. The problem with this approach is that the anticipated case law may never develop. Most crime victims are not trained in the nuances of the law and lack the means to retain legal counsel. Victims are often indigent and are frequently emotionally and physically harmed by the defendant's crime. They are then involuntarily forced into the middle of complicated and unfamiliar legal proceedings. To expect that in these circumstances, crime victims will often be able to undertake the kind of sophisticated and pathbreaking litigation that would be necessary to establish crime victims seems unreasonable. One of the main reasons for the CVRA was to change a legal culture that has been hostile to crime victims. To expect that this legal culture will somehow, on a case-by-case basis, welcome crime victims is unlikely. Indeed, it is ironic that while waiting for case law to ``develop,'' the Advisory Committee refused to add to the Federal rules a provision confirming the existing discretionary right of trial judges to appoint legal counsel for crime victims who need legal assistance on complicated issues.

The wait-for-caselaw approach is also troubling because it assumes that Federal court litigation will serve sufficiently to clarify the rights of victims in the Federal system. But the Federal Rules of Criminal Procedure form the template for rules of criminal procedure in states throughout the country. One of the main purposes of the CVRA was to create a model for protecting victims in the criminal justice system. Unless the text of the Federal rules themselves protects crime victims, the states will not have a model they can look to in drafting their own rules to guarantee victims fair treatment.

The final reason given for deferring action on rules changes is that the Advisory Committee thought that some of the changes might create new substantive rights better left to Congress. It's a bit of an Alphonse-and-Gaston situation: Congress says ``after you'' to the Advisory Committee, only to have the Advisory Committee say ``after you.'' To avoid an impasse that leaves crime victims unprotected, obviously someone needs to take the lead. That is why I am today introducing The Crime Victims' Rights Rules Act.

One last provision in the bill is also worth highlighting. The bill includes a sense of the Congress provision that crime victims ought to be represented on the Advisory Committee on Criminal Rules.

This point was called to my attention by Professor Douglas Beloof, a distinguished law professor at the Lewis and Clark College of Law and the Director of the well-regarded National Crime Victims Law Institute. Professor Beloof testified before the Advisory Committee in January.

He was surprised to discover at that time that, while the Justice Department, the defense bar, and judges are all represented on the Committee, there is no representative for crime victims. Not only does this leave crime victims organizations without a liaison for bringing information to the attention of the Committee, but, more important, it deprives the Committee of the valuable perspective that such a representative could bring on the rule change issues the Committee regularly considers.

With the passage of the CVRA, crime victims, no less then the Justice Department and the defense bar, became participants with recognized rights in the criminal justice process. They should, therefore, be represented directly on the Advisory Committee on Criminal Rules.

When Congress passed the CVRA, it made a commitment to crime victims that they would no longer be overlooked in the criminal justice process. Nowhere is that commitment better exemplified than in the CVRA's promise that victims will be given ``the right to be treated with fairness and with respect for the victim's dignity and privacy.'' Until the rules governing criminal proceedings in our Federal courts fully protect crime victims, that important goal will not be achieved.

I urge my colleagues to carry forward the promises made in the Crime Victims Rights Act. Crime victims' rights must be respected throughout the Federal Rules of Criminal Procedure. The Crime Victims' Rights Rules Act would amend the rules to ensure that crime victims are no longer overlooked in the federal criminal process.

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