2014] CRIME VICTIMS’ RIGHTS 89
felony offenses, broadly extending its protections to victims of any federal offense.'”’ Thus, under OLC’s interpretation that the filing of a complaint does not trigger the CVRA, many victims who are entitled to CVRA protections—i.e., victims of misdemeanor offenses prosecuted by way of complaint—will never have proper venue to assert those rights because, according to OLC’s strained argument, no prosecution ever started in their cases.
Even limiting the focus to felony cases, OLC misleadingly describes the Sixth Amendment case law. It is not immediately clear why one would look to the nght to counsel to determine the breadth of the term “prosecution” in the Sixth Amendment. The right to counsel is not the only night found in that Amendment. The Amendment also extends, for example, a right to a speedy trial in all criminal “prosecutions.”'” The case law on the speedy trial nght makes clear that the right “may attach before an indictment and as early as the time of arrest and holding to answer a criminal charge.”
In any event, the right to counsel cases are quite clear in providing that a Sixth Amendment “prosecution” can (and often does) begin well before an indictment.’ The Supreme Court has directly held that the Sixth Amendment’s right to counsel attaches “at or after the time that judicial proceedings have been initiated against [a person|—‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’”!” Thus, under this controlling precedent, some earlier point in time before indictment is the triggering point of a Sixth Amendment “prosecution.”
The cases that OLC cites are not to the contrary. It is true that some federal appeals courts have stated that the mere filing of a criminal complaint does not trigger a Sixth Amendment right to counsel.'’° But there is a split of authority on this question, as OLC acknowledges in a footnote.'’? More importantly for purposes of this Article, the cases holding
Tl See 18 U.S.C. § 3771 (e) (2012).
7 U.S. Const. amend. VI.
® United States v. Gouveia, 467 U.S. 180, 190 (1984) (quoting United States v. MacDonald, 456 U.S. 1, 6-7 (1982)) (internal quotation marks omitted).
4 See, e.g., Texas v. Cobb, 532 U.S. 162, 172-73 (2001).
1 Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 2, 689 (1972)).
1© See, e.g., United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006).
7 OLC CVRA Rights Memo, supra note 2, at 14 n.15 (citing Hanrahan v. United States, 348 F.2d 363, 366 n.6 (D.C. Cir. 1965)),; see WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 6.4(e), at 670 (3d ed. 2007) (“There is an apparent split of authority on the question of whether the filing of a complaint is alone enough to give rise to a Sixth Amendment right to counsel, though the difference probably is explainable by the fact that
6
ioe}
HOUSE_OVERSIGHT_014068