Page 48 of 78 2007 Utah L. Rev. 861, *927
approval, 3°7 but also court approval. 388 Any approval [*928] requires careful weighing of the competing concerns. The Supreme Court has instructed that
the duty of the trial court ... [in considering whether to approve a jury trial waiver] is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or
from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. 389
This is a "serious and weighty responsibility." 39°
To discharge that serious and weighty responsibility, the Advisory Committee should draft Rule 23 so that the trial court should receive as much relevant information as possible. The victim may be well situated to provide useful information about how the public will view a nonjury trial. The proposed rule change takes the modest step of allowing the victim to be heard before the court approves any nonjury trial.
(New) Rules 32(e), (f), (h), and (i) - Disclosure of the Presentence Report to Victims and Opportunity for Victims to Object and Be Heard 3°! The Proposals:
In the federal system, the presentence report is a critical part of the sentencing process. I therefore recommended that the prosecutor should be required to disclose relevant parts of the presentence report to victims as follows: [*929]
(ec) Disclosing the Report and Recommendation.
(1) Time to Disclose. Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found
guilty.
(2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period. The attorney for the government shall, if any victim requests, communicate the relevant contents of the presentence report to the victim.
387 Fed._R. Crim. P. 23(a)(2). See generally ABA Standards for Criminal Justice § 15-1.2, cmt. at 15.17 (2d ed. 1980) (concluding that arguments in favor of requiring prosecutorial approval of jury trial waivers outweigh those against). But see Adam H. Kurland, Providing a Federal Criminal Defendant with a Unilateral Right to a Bench Trial: A Renewed Call to Amend Federal Rule of Criminal Procedure 23(a), 26 ULC. Davis L. Rev. 309, 316 (1993) (arguing that the requirements of prosecutorial consent and court approval should be removed from Rule 23(a)).
388 Bed. R. Crim. P. 23(a)(3); ef. Akhil Reed Amar, The Bill of Rights as a Constitution, /00 Yale LJ. 1131, 1196-98 (1991) (suggesting that jury trial right might not be waivable).
389 Patton v. United States, 281 U.S. 276, 312-13 (1930) (internal quotation marks omitted).
390 United States v. Saadva, 750 F.2d 1419, 1421 (9th Cir. 1985) (internal citation omitted).
391 Tn addition to the changes to Rule 32 discussed here, the Advisory Committee essentially adopted verbatim my proposals to amend Rules 32(a), 32(c)(1)(B), and 32(d)(2)(B). Compare Cassell, Proposed Amendments, supra note 4, at 886, 887, 891, with Proposed Amendments, supra note 71, R. 32(a), 32(c)(1)(B), 32(d)(2)(B), at 10-15. There is, accordingly, no need to discuss those proposed rules here.
The Advisory Committee also declined to add my proposal that the probation officer determine whether the victim wished to have any material included in the presentence report. See Cassell, Proposed Amendments, supra note 4, at 889. I will rely on my original article to make the case for this particular change. See id. at 889-91
DAVID SCHOEN
HOUSE_OVERSIGHT_017683