Page 61 of 78 2007 Utah L. Rev. 861, *946
The Advisory Committee's next argument is that to allow victims to be heard on dismissals would violate the CVRA's requirement that nothing in the Act "shall be construed to impair the prosecutorial discretion of the Attorney General." 48° But it is hard to understand how allowing information from a victim to go to a court "impairs" the government's discretion. Particularly given that courts must already review the public interest in reviewing dismissal motions, executive branch power is not impaired when a court hears from a victim in making its determination whether to approve. 4°!
The Advisory Committee's final argument is that "when there is no public court proceeding, the victim's views will be taken into account through the right to confer with the government ... ."_ 48? The passive voice ("taken into account") obscures the overarching fact that it is the government itself that is proposing to dismiss the charges. The victim deserves to be heard not merely by the government agency proposing to drop the charges, but by the independent branch of government - the judiciary - that will review that proposal. For all these reasons, Rule 48 should be amended to ensure that victims are heard because charges are dismissed.
[*947] Rule 50 - Victims’ Right to Proceedings Free From Unreasonable Delay The Proposals:
I proposed that a victim's right to proceedings free from unreasonable delay should be recognized as follows: Rule 50. Prompt Disposition
(a) Scheduling Preference. Scheduling preference must be given to criminal proceedings as far as practicable.
(b) Defendant's Right Against Delay. The court shall assure that the defendant's right to a speedy trial is protected, as provided by the Speedy Trial Act.
(c) Victim's Right Against Delay. 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. 4%?
The Advisory Committee proposed no change to this Rule. 444 Discussion:
Victims have speedy trial rights under the CVRA, which grants victims the right "to proceedings free from unreasonable delay."
485 Tn addition, child victims previously had the right to a "speedy trial" in certain situations. 45°
In view of these statutory rights, I proposed supplementing the existing rule on scheduling (Rule 50) to fold in victims' rights. The Advisory Committee did not explicitly discuss this proposal, suggesting that its failure to act was possibly due to oversight. 487 Further suggesting oversight is the Advisory Committee's repeated statements that it "sought to incorporate, but not go
480 18 U.S.C. § 3771(d)(6) (2006).
481 See Heaton, 458 F. Supp. 2d at 1271-73 (reaching this conclusion). In Heaton, the government did not challenge this holding and, after the decision requiring it to submit the victim's views, filed a pleading to that effect, all without any apparent separation of powers problem.
482 CVRA Subcommittee Memo, supra note 66, at 20. 483 Cassell, Proposed Amendments, supra note 4, at 918-19.
484 Proposed Amendments, supra note 71.
485 18 U.S.C. § 3771(a)(7) (2006). 486 Id. § 3509(j).
487 See CVRA Subcommittee Memo, supra note 66, at 17-20 (cataloging my proposals that the subcommittee did not adopt; Rule 50 not mentioned).
DAVID SCHOEN
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