Page 20 of 78 2007 Utah L. Rev. 861, *888
Perhaps the Advisory Committee overlooked this proposed change. !®? Yet it is important, implementing not only a victim's right to be heard at plea proceedings but also the rights to "confer with the attorney for the government" !® and to be "treated with fairness." !®° Given that victims have the right to confer, the conferring should take place at the most salient points in the process. As Senator Feinstein explained, "This right [to confer] 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." !®° Because the overwhelming majority of federal criminal cases are resolved by a plea, a conference between the victim and the prosecutor regarding the plea will be critical in most cases. Reflecting that fact, the Rules should follow the approach of the majority of states in directing prosecutors to consult with victims about pleas.
[*889] Rule 11(c)(2) - Court to Be Advised of Victim Objections to Plea The Proposals:
I proposed that prosecutors and victims' attorneys should be required to advise the court whenever they are aware that the victim objects to a proposed plea agreement as follows:
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera. When a plea is presented in open court, the attorney for the government or the attorney for any victim shall advise the court when the attorney is aware that the victim has any objection to the proposed plea agreement. !®7
The Advisory Committee proposed no change to this rule. 168 Discussion:
In circumstances where an attorney, either for the government or for the victim, is aware of a victim's objection to a plea, that information should be relayed to the court. The victim's attorney will, no doubt, do this on her own initiative. The rule is intended to clarify that the prosecutor is under an equal obligation to communicate this information to the court.
169
While the Advisory Committee may have overlooked this proposal, the change is necessary because the CVRA implicitly
obligates prosecutors to communicate a victim's objection to the court. The CVRA commands that prosecutors use their "best efforts" to enforce victims' rights. !7° Victims are often untrained in the law and unexpectedly thrust into criminal proceedings; they may well believe that prosecutors automatically relay their objections to the plea to the court. The proposed rule avoids confusion by requiring the prosecutor to notify the court of a victim's concern. The rule is limited to situations where the prosecutor is aware of an objection.
This approach is consistent with the leading case of State v. Casey, !7! which considered whether a victim's request to be heard
regarding a plea made to the [*890] prosecutor was sufficient to trigger the victim's constitutional right to be heard. !7* In
63 See supra note 147 and accompanying text (noting listing of Cassell proposals rejected; Rule 11 proposals not listed).
64 18 U.S.C. § 3771(a)(5) (2006). 6 Id. § 3771(a)(8). 66 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
®7 Cassell, Proposed Amendments, supra note 4, at 869.
68 Proposed Amendments, supra note 71.
69 See supra note 147 and accompanying text (noting listing of Cassell proposals rejected; Rule 11 proposals not mentioned).
7 18 U.S.C. § 3771(c)(1) (2006).
1 2002 UT 29, 44 P.3d 756. I served as pro bono counsel for the victim in the case.
7 See generally Nicole G. Farrell, Recent Developments, A Victim's Right To Be Heard Under the Victims’ Rights Amendment, The Victims' Right Act, and the Rights of Crime Victims Act, 2003 Utah L. Rev. 716 (summarizing impacts of case on Utah law).
DAVID SCHOEN
HOUSE_OVERSIGHT_017655