Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
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Crime Victims’ Rights Act: A Summary and
Legal Analysis of 18 U.S.C. § 3771
Updated June 8, 2021
Congressional Research Service
https://crsreports.congress.gov
RL33679
Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
Summary
Section 3771 of Title 18 of the United States Code is a statutory bill of rights for the victims of
crimes committed in violation of federal law or the laws of the District of Columbia. It defines a
victim as anyone directly and proximately harmed by such an offense, individuals and legal
entities alike. It does not appear to otherwise include family members of a deceased, child, or
incapacitated victim except in a representative capacity.
Numbered among the rights it conveys are: (1) the right to be reasonably protected from the
accused; (2) the right to notification of public court and parole proceedings and of any release of
the accused; (3) the right not to be excluded from public court proceedings under most
circumstances; (4) the right to be heard in public court proceedings relating to bail, the acceptance
of a plea bargain, sentencing, or parole; (5) the right to confer with the prosecutor; (6) the right to
restitution under the law; (7) the right to proceedings free from unwarranted delays; (8) the right
to be treated fairly and with respect to one’s dignity and privacy; (9) the right to be informed in a
timely manner of any plea bargain or deferred prosecution agreement; and (10) the right to be
informed of the statutory rights and services to which one is entitled.
The section directs the federal courts and law enforcement officials to see to it that the rights it
creates are honored. Both victims and prosecutors may assert the rights and seek review from the
appellate courts should the rights be initially denied.
The section vests no rights in the accused nor does it create a cause-of-action for damages in any
instance where a victim is afforded less than the section’s full benefits. Moreover, it creates no
implicit cause of action for relief for pre-charge violations and may not be construed to impede
prosecutorial discretion.
Conforming amendments to the Federal Rules of Criminal Procedure became effective on
December 1, 2008. The Justice Department promulgated implementing regulations on November
17, 2005. The Justice for Victims of Trafficking Act of 2015 added to the inventory of victims’
statutory rights and clarified the appellate standard to be used to enforce those rights. The text of
Section 3771 is attached. So is the text of Rule 60 of the Federal Rules of Criminal Procedure.
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 2
Who Is a Victim? ............................................................................................................................. 6
Persons ...................................................................................................................................... 7
Directly and Proximately Harmed............................................................................................. 8
Crime Charged .......................................................................................................................... 9
Family of Victims ..................................................................................................................... 11
Crimes Under What Law......................................................................................................... 12
Who Is Not a Victim................................................................................................................ 13
The Accused ...................................................................................................................... 13
The Right to Be Reasonably Protected from the Accused ............................................................ 13
Notice ............................................................................................................................................ 15
Public Proceedings .................................................................................................................. 17
Parole Proceedings .................................................................................................................. 18
Involving the Crime ................................................................................................................ 18
Reasonable, Accurate, and Timely Notice .............................................................................. 19
Release or Escape of the Accused ........................................................................................... 21
Attendance ..................................................................................................................................... 22
Participation................................................................................................................................... 25
Reasonably Heard ................................................................................................................... 25
Public Court Release Proceedings........................................................................................... 27
Plea Bargains ........................................................................................................................... 30
Sentencing ............................................................................................................................... 31
Parole and Pardon ................................................................................................................... 32
Confer ............................................................................................................................................ 33
Restitution ..................................................................................................................................... 34
Reasonable Freedom from Delay .................................................................................................. 36
Fairness, Dignity, and Privacy ....................................................................................................... 39
Notice of Plea and Deferred Prosecution Agreements ............................................................ 40
Notice of Section 3771 Rights and Statutory Services............................................................ 41
Responsibilities of the Courts........................................................................................................ 41
Generally ................................................................................................................................. 41
Habeas Corpus ........................................................................................................................ 42
Responsibilities of Other Authorities ............................................................................................ 43
Enforcement .................................................................................................................................. 43
Who ......................................................................................................................................... 43
Mandamus and Appeal ............................................................................................................ 44
Limitations..................................................................................................................................... 46
One Accused—Too Many Victims .......................................................................................... 46
No New Trial ........................................................................................................................... 47
No Damages and Prosecutorial Discretion.............................................................................. 48
Justice Department Regulations .................................................................................................... 50
18 U.S.C. § 3771 (text) (Language Added by P.L. 114-22 in Italics) ............................................ 50
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
Federal Rule of Criminal Procedure 60. Victim’s Rights (text) .................................................... 53
Contacts
Author Information........................................................................................................................ 54
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
Introduction
The victims of federal crimes enjoy certain rights to notice, attendance, and participation in the
federal criminal justice process by virtue of 18 U.S.C. § 3771.1 More specifically, the section
assures victims that they have:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or
any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court,
after receiving clear and convincing evidence, determines that testimony by the victim
would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s dignity and
privacy.
(9) The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.
(10) The right to be informed of the rights under this section and the services described in
section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. 10607(c)) and
provided contact information for the Office of the Victims’ Rights Ombudsman of the
Department of Justice.2
Section 3771 is the product of a long effort to afford greater deference to victims in the criminal
justice process. It is akin to the victims’ bill of rights provisions found in the laws of the various
states and augments a fairly wide variety of preexisting federal victims’ rights legislation. Its
enactment followed closely on the heels of discontinued efforts to pass a victims’ rights
amendment to the U.S. Constitution. Section 3371 borrows extensively from the language in the
federal restitution statutes, which seems appropriate since, in the case of restitution, it simply
serves as a reminder of the rights the restitution statutes supply, that is, “the right to full and
timely restitution as provided in law.”
The statute has remained with but few changes since its enactment in 2004. Soon thereafter, the
Adam Walsh Child Protection and Safety Act of 2006 clarified its application in habeas corpus
proceedings.3 More recently, the Justice for Victims of Trafficking Act of 2015 added the two new
1 Section 3771 was enacted as part of the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila
Lynn Crime Victims’ Rights Act (CVRA), which in turn appears as Title I of the Justice For All Act of 2004, P.L. 108405, 118 Stat. 2260 (2004). This report is available in an abridged form—without the footnotes, attributions, citations
to authority, or appendices found here—as CRS Report RS22518, Crime Victims’ Rights Act: A Sketch of 18 U.S.C.
§3771, by Charles Doyle.
2 18 U.S.C. § 3771(a). The Justice for Victims of Trafficking Act added the language in italics, P.L. 114-22,
§ 113(a)(1), 129 STAT. 240 (2015).
3 P.L. 109-248, § 212, 120 STAT. 616 (2006).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
rights that appear in italics above.4 It also resolved a split among the federal appellate courts over
the mandamus standard of review to be applied when victims seek appellate vindication of a
denial of their rights.5
Background
Legal reform in the name of crime victims began to appear in state and federal law in the 1960s.
It can be seen in victim restitution and compensation laws;6 in the reform of rape laws,7 drunk
driving statutes,8 and bail laws;9 and in provisions for victim impact statements at sentencing,10 to
name a few. Over time in many jurisdictions, these specific victim provisions were joined by a
more general, more comprehensive victims’ bills of rights. Thus, by the close of the 20th Century,
33 states had added a victims’ rights amendment to their state constitutions,11 and each of the
states had a general statutory declaration of victims’ rights.12
4 P.L. 114-22, § 113(a), 129 STAT. 240 (2015).
5 P.L. 114-22, § 113(c), 129 STAT. 241 (2015).
6 Michael P, Smodish, But What About the Victim? The Forsaken Man in American Criminal Law, 22 U. FLA. L. REV.
1, 10-20 (1969) (describing early state victim compensation statutes); PRESIDENT’S COMM’N ON L ENF’T & ADMIN. OF
JUST. TASK FORCE ON ASSESSMENT, TASK FORCE REPORT: CRIMES AND ITS IMPACT—AN ASSESSMENT 83 (1967) (“The
Commission has been impressed by the consensus among legislators and law enforcement officials that some kind of
State compensation for victims of violent crime is desirable.”).
7 J. Alexander Tanford & Anthony J. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. PA. L. REV.
544, 544, 550 n.23 (1979) (“In the past few years, forty-six states have made efforts to protect rape victims from the
humiliation of public disclosure of the details of their prior sexual activities.”) (also noting the elimination of
corroboration requirements that refused to allow a rape conviction based solely upon the testimony of the victim); see
also Vivian Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 COLUM. L. REV. 1 (1977).
8 Steven Alderman, Highway Safety—Menace on Our Highways—Is Implied Consent the Answer?, 18 DEPAUL L. REV.
753, 754 n.7 (1969) (noting the trend to enact implied consent to statutes to permit authorities to test the blood alcohol
level of suspected drunken drivers).
9 Note, Bail Reform in the State and Federal Systems, 20 VAND. L. REV. 948, 959-60 (1967) (noting the preventive
detention tendency of state courts to consider, in setting bail, the danger of the accused to the community including past
and future victims); see also John N. Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 VA. L.
REV. 1223, 1236 (1969) (noting that the Administration’s preventive detention proposals were limited to crimes that
usually “involve planning, deliberation and the purposeful selection of a victim who is almost always a stranger”).
10 Phillip A. Talbert, The Relevance of Victim Impact Statements to the Criminal Sentencing Decision, 36 UCLA L.
REV. 199, 200-01, n.12 (1988) (noting that by the mid-1980s, at least thirty-eight states had enacted statutes calling for
some form of victim impact statement at sentencing).
11 Douglas E. Beloof, Victims’ Rights: A Documentary and Reference Guide, Table 1.2 (2010). The current inventory
of state constitutional provisions includes: ALA. CONST. art. I, § 6.01; ALASKA CONST. art. I, § 24; ARIZ. CONST. art. 2,
§ 2.1; CAL. CONST. art. I, § 28; COLO. CONST. art. II, § 16a; CONN. CONST. art. I, § 8[b.]; FLA. CONST. art. I, § 16(b);
GA. CONST. art. 1, § 1, ¶ xxx; IDAHO CONST. art. I, § 22; ILL. CONST. art. I, § 8.1; IND. CONST. art. 1, § 13; LA. CONST.
art. 1, § 25; KAN. CONST. art. 15, § 15; KY. CONST. § 26; MD. D. RTS. art. 47; MICH. CONST. art. I, § 24; MISS. CONST.
art. 3, § 26A; MO. CONST. art. I, § 32; MONT. CONST. art. 2, § 28; NEB. CONST. art.1, § 28; NEV. CONST. art.1, § 8; N.J.
CONST. art. I, § 22; N.M. CONST. art. II, § 24; N.C. Const. art. I, § 37; N.D. CONST. art. I, § 25; OHIO CONST. art. I,
§ 10a; OKLA. CONST. art. II, § 34; ORE. CONST. art. I, §§ 42, 43; PA. CONST. art. 1, § 9.1; R.I. CONST. art. I, § 23; S.C.
CONST. art. I, § 24; S.D. CONST. art. 6, § 29; TENN. CONST. art. I, § 35; TEX. CONST. art. I, § 30; UTAH CONST. art. I,
§ 28; VA. CONST. art. I, § 8-A; WASH. CONST. art. I, § 35; WIS. CONST. art. I, § 9m. Some commentators suggest we are
in the midst of a new wave of victims’ rights amendments to state constitutions. Paul G. Cassell & Margaret Garvin,
Protecting Crime Victims in State Constitutions: The Example of the New Marsy’s Law for Florida, 110 J. CRIM. AND
CRIMINOLOGY 99, 101 (2020) (noting a dozen states have recently amended their victims’ rights constitutional
provisions).
12 ALA. CODE §§ 15-23-60 to 15-23-84; ALASKA STAT. §§ 12.61.010 to 12.61.900; ARIZ. REV. STAT. ANN. §§ 13-4401
to 13-4443; ARK. CODE ANN. §§ 16-90-1101 to 16-90-1115; CAL. PENAL CODE §§ 679–680.04; COLO. REV. STAT. ANN.
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In the meantime, Congress had enacted a series of individual victims’ rights provisions13 as well
as a general aspirational federal statute, 42 U.S.C. § 10606, directed to the performance of federal
officials.14 Section 10606 was accompanied by a statement of the sense of Congress encouraging
similar action by the states15 and by specific directions to the heads of the various federal law
enforcement departments and agencies for implementation, both of which remain in effect.16
§§ 24-4.1-301 to 24-4.1-305; CONN. GEN. STAT. ANN. §§ 54-201 to 54-235; DEL. CODE ANN. tit. 11 §§ 9401–9420;
FLA. STAT. ANN. §§ 960.001–960.298; GA. CODE ANN. §§ 17-17-1 to 17-17-16; HAW. REV. STAT. §§ 801D-1 to 801D7; IDAHO CODE § 19-5306; ILL. COMP. LAWS ANN. ch. 725 §§ 120/1–120/9; IND. CODE ANN. §§ 35-40-5-1 to 35-40-513; IOWA CODE ANN. §§ 915.1–915.100; KAN. STAT. ANN. § 74-7333; KY. REV. STAT. ANN. §§ 421.500–421.576; LA.
REV. STAT. ANN. §§ 46:1841–46:1846; ME. REV. STAT. ANN. tit. 17-A §§ 2101–2109; MD. CODE ANN. CRIM. PRO. §§
11-101 to 11-105; MASS. GEN. LAWS ANN. ch. 258B §§ 1–13; MICH. COMP. LAWS ANN. §§ 780.751–780.834; MINN.
STAT. ANN. §§ 611a.01–611a.90; MISS. CODE ANN. §§ 99-43-1 to 99-43-101; MO. ANN. STAT. §§ 595.010–595.232;
MONT. CODE ANN. §§ 46-24-101 to 46-24-220; NEB. REV. STAT. § 81-1848; NEV. REV. STAT. §§ 178.569–178.5698;
N.H. REV. STAT. ANN. § 21-M:8-k; N.J. STAT. ANN. §§ 52:4B-36 to 52:4B-76; N.M. STAT. ANN. §§ 31-26-1 to 31-2615; N.Y. EXEC. LAW §§ 640–649; N.C. GEN. STAT. §§ 15A-830 to 15A-839; N.D. CENT. CODE §§ 12.1-34-01 to 12.134-08; OHIO REV. CODE ANN. §§ 2930.01–2930.19; OKLA. STAT. ANN. tit. 21 §§ 142a-1 to 142b; ORE. REV. STAT.
§§ 147.405–147.438; PA. STAT. ANN. tit. 18 §§ 11.201–11.216; R.I. GEN. LAWS § 12-28-1 to 12-28-12; S.C. CODE ANN.
§§ 16-3-1505 to 16-3-1565; S.D. COD. LAWS ANN. §§ 23A-28C-1 to 23A-28C-15; TENN. CODE ANN. §§ 40-38-101 to
40-38-303; TEX. CODE OF CRIM. PRO. arts. 56.01–56.15; UTAH CODE ANN. §§ 77-38-1 to 77-38-405; VT. STAT. ANN. tit.
13 §§ 5301–5322; VA. CODE ANN. §§ 19.2-11.01 to 19.2-11.4; WASH. REV. CODE ANN. §§ 7.69.010–7.69.05; W.VA.
CODE §§ 61-11A-1 to 61-11A-8; WIS. STAT. ANN. §§ 950.01–950.11; WYO. STAT. §§ 1-40-201 to 1-40-210.
13 E.g., 18 U.S.C. §§ 3510 (victim attendance rights), 3525 (victims compensation fund), 3555 (notice to fraud victims),
3663-3664 (restitution); FED. R. CRIM. P. 32(i)(4)(B) (victim impact statements at sentencing), FED. R. EVID. 412
(relevancy of victims’ past conduct).
14 P.L. 101-647, § 502, 104 STAT. 4820 (1990) (once codified at 42 U.S.C. § 10606):
Victims’ rights. (a) Best efforts to accord rights. Officers and employees of the Department of
Justice and other departments and agencies of the United States engaged in the detection,
investigation, or prosecution of crime shall make their best efforts to see that victims of crime are
accorded the rights described in subsection (b) of this section. (b) Rights of crime victims. A crime
victim has the following rights: (1) The right to be treated with fairness and with respect for the
victim’s dignity and privacy. (2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings. (4) The right to be present at all public court
proceedings related to the offense, unless the court determines that testimony by the victim would
be materially affected if the victim heard other testimony at trial. (5) The right to confer with [the]
attorney for the Government in the case. (6) The right to restitution. (7) The right to information
about the conviction, sentencing, imprisonment, and release of the offender. (c) No cause of action
or defense. This section does not create a cause of action or defense in favor of any person arising
out of the failure to accord to a victim the rights enumerated in subsection (b) of this section.
Congress repealed § 10606 when it enacted § 3771, P.L. 108-405, § 102(c), 118 STAT. 2264 (2004).
15 P.L. 101-647, § 506, 104 STAT. 4822 (1990) (once codified at 42 U.S.C. § 10606 nt.).
16 P.L. 101-647, § 503, 104 STAT. 4820 (1990) (once codified at 42 U.S.C. § 10607 nt.). As part of the reorganization
of Title 42 of the U.S. Code and transfers to Title 34, 34 U.S.C. § 20141 now provides:
(a) Designation of responsible officials
The head of each department and agency of the United States engaged in the detection,
investigation, or prosecution of crime shall designate by names and office titles the persons who
will be responsible for identifying the victims of crime and performing the services described in
subsection (c) at each stage of a criminal case.
(b) Identification of victims
At the earliest opportunity after the detection of a crime at which it may be done without
interfering with an investigation, a responsible official shall—(1) identify the victim or victims of a
crime; (2) inform the victims of their right to receive, on request, the services described in
subsection (c); and (3) inform each victim of the name, title, and business address and telephone
number of the responsible official to whom the victim should address a request for each of the
services described in subsection (c).
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Crime Victims’ Rights Act: A Summary and Legal Analysis of 18 U.S.C. § 3771
(c) Description of services
(1) A responsible official shall—(A) inform a victim of the place where the victim may
receive emergency medical and social services; (B) inform a victim of any restitution or other relief
to which the victim may be entitled under this or any other law and [the] manner in which such
relief may be obtained; (C) inform a victim of public and private programs that are available to
provide counseling, treatment, and other support to the victim; and (D) assist a victim in contacting
the persons who are responsible for providing the services and relief described in subparagraphs
(A), (B), and (C).
(2) A responsible official shall arrange for a victim to receive reasonable protection from a
suspected offender and persons acting in concert with or at the behest of the suspected offender.
(3) During the investigation and prosecution of a crime, a responsible official shall provide a
victim the earliest possible notice of—(A) the status of the investigation of the crime, to the extent
it is appropriate to inform the victim and to the extent that it will not interfere with the
investigation; (B) the arrest of a suspected offender; (C) the filing of charges against a suspected
offender; (D) the scheduling of each court proceeding that the witness is either required to attend
or, under section 10606(b)(4) of title 42, is entitled to attend; (E) the release or detention status of
an offender or suspected offender; (F) the acceptance of a plea of guilty or nolo contendere or the
rendering of a verdict after trial; and (G) the sentence imposed on an offender, including the date on
which the offender will be eligible for parole.
(4) During court proceedings, a responsible official shall ensure that a victim is provided a
waiting area removed from and out of the sight and hearing of the defendant and defense witnesses.
(5) After trial, a responsible official shall provide a victim the earliest possible notice of—(A)
the scheduling of a parole hearing for the offender; (B) the escape, work release, furlough, or any
other form of release from custody of the offender; and (C) the death of the offender, if the offender
dies while in custody.
(6) At all times, a responsible official shall ensure that any property of a victim that is being
held for evidentiary purposes be maintained in good condition and returned to the victim as soon as
it is no longer needed for evidentiary purposes.
(7) The Attorney General or the head of another department or agency that conducts an
investigation of a sexual assault shall pay, either directly or by reimbursement of payment by the
victim, the cost of a physical examination of the victim which an investigating officer determines
was necessary or useful for evidentiary purposes. The Attorney General shall provide for the
payment of the cost of up to 2 anonymous and confidential tests of the victim for sexually
transmitted diseases, including HIV, gonorrhea, herpes, chlamydia, and syphilis, during the 12
months following sexual assaults that pose a risk of transmission, and the cost of a counseling
session by a medically trained professional on the accuracy of such tests and the risk of
transmission of sexually transmitted diseases to the victim as the result of the assault. A victim may
waive anonymity and confidentiality of any tests paid for under this section.
(8) A responsible official shall provide the victim with general information regarding the
corrections process, including information about work release, furlough, probation, and eligibility
for each.
(d) No cause of action or defense
This section does not create a cause of action or defense in favor of any person arising out of
the failure of a responsible person to provide information as required by subsection (b) or (c).
(e) Definitions
For the purposes of this section—
(1) the term “responsible official” means a person designated pursuant to subsection (a) to
perform the functions of a responsible official under that section; and
(2) the term “victim” means a person that has suffered direct physical, emotional, or pecuniary
harm as a result of the commission of a crime, including—(A) in the case of a victim that is an
institutional entity, an authorized representative of the entity; and (B) in the case of a victim who is
under 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order of
preference): (i) a spouse; (ii) a legal guardian; (iii) a parent; (iv) a child; (v) a sibling; (vi) another
family member; or (vii) another person designated by the court.
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In addition, beginning in the 104th Congress, both houses regularly considered victims’ rights
amendments to the U.S. Constitution.17 Unable to reach the consensus necessary for passage,
sponsors opted for a statutory substitute,18 which unlike the “best-efforts” preexisting statute,
included enforcement mechanisms. The legislation, S. 2329—the Scott Campbell, Stephanie
Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Right Act—was introduced
in the Senate on April 21, 2004, and passed the following day.19 The House merged an amended
version of S. 2329 with DNA proposals in H.R. 5107, the Justice for All Act, which it passed on
October 6, 2004.20 The Senate passed H.R. 5107 unamended three days later,21 and the President
signed it on October 30, 2004.22 The implementing amendments to the Federal Rules of Criminal
Procedure, including Rule 60 (victims’ rights), became effective on December 1, 2008.23
17 See, in the 104th Congress: S.J.Res. 52, S.J.Res. 65, H.J.Res. 173, and H.J.Res. 174; A Proposed Constitutional
Amendment to Establish a Bill of Rights for Crime Victims: Hearing Before the Senate Comm. on the Judiciary, 104th
Cong., 2d Sess. (1996); in 105th Congress: S.J.Res. 6, S.J.Res. 44, H.J.Res. 71, and H.J.Res. 129; S.Rept. 105-409
(1998); Proposals to Provide Rights to Victims of Crime: Hearing Before the House Comm. on the Judiciary, 105th
Cong., 1st Sess. (1997); A Proposed Constitutional Amendment to Protect Victims of Crime: Hearing Before the Senate
Comm. on the Judiciary, 105th Cong., 1st Sess. (1997); in the 106th Congress: S.J.Res. 3, and H.J.Res. 64; S.Rept.
106-254 (2000); A Proposed Constitutional Amendment to Protect Crime Victims: Hearing Before the Senate Comm.
on the Judiciary, 106th Cong., 1st Sess. (1999), and H.J.Res. 64, Proposing An Amendment to the Constitution of the
United States to Protect the Rights of Crime Victims: Hearing Before the Subcommittee on the Constitution of the
House Judiciary Comm., 106th Cong., 2d Sess. (2000); in the 107th Congress: S.J.Res. 35, H.J.Res. 88, and H.J.Res.
91; Federal Victims’ Rights Amendment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 107th Cong., 2d Sess. (2002) [hereinafter House Hearing IV]; S.J.Res. 35, The Crime Victims’ Rights
Amendment: Hearing Before the Subcomm. on Constitution, Federalism, and Property Rights of the Senate Comm. on
the Judiciary, 107th Cong., 2d Sess. (2002) [hereinafter Senate Hearing IV]; and in the 108th Congress: H.J.Res. 10,
H.J.Res. 48, S.J.Res. 1; S.Rept. 108-191; Crime Victims Constitutional Amendment: Hearing Before the Subcomm. on
the Constitution of the House Comm. on the Judiciary, 108th Cong., 1st Sess. (2003) [hereinafter House Hearing V]; A
Proposed Constitutional Amendment to Protect Crime Victims, S.J.Res. 1: Hearing Before the Senate Comm. on the
Judiciary; 108th Cong., 1st Sess. (2003) [hereinafter Senate Hearing V].
18 “[R]ecognizing that we didn’t have the 67 votes necessary for a constitutional amendment—both Senator Kyl and I,
as well as the victims and their advocates, decided that we should compromise. There are Members of this body who
very much want a statute. There are Members of this body who very much want a constitutional amendment. We have
drafted a statute which we believe is broad and encompassing . . . .” 150 Cong. Rec. 7295 (2004) (remarks of Sen.
Feinstein); see also id. at 7300 (“Knowing we would not have the 67 votes to pass it, we decided it was time to get
something tangible in statute to protect the rights of victims.”) (remarks of Sen. Kyl).
19 150 Cong. Rec. 7316 (2004).
20 150 Cong. Rec. 21087-88 (2004). See also H.Rept. 108-711 (2004).
21 150 Cong. Rec. 22951 (2004).
22 P.L. 108-405, 118 STAT. 2260 (2004).
23 The Federal Rules of Criminal Procedure now feature these victim-friendly rules: FED. R. CRIM. 1(b)(12) (defines the
term “victim” for purposes of the Rules as it is defined in Section 3771(e)); FED. R. CRIM. 12.1(b) (limits disclosure of
victim/witness’s name and address when the defendant claims an alibi defense); FED. R. CRIM. 12.3 (limits discovery of
victim/witness’s name and address when the defendant claims a public-authority defense); FED. R. CRIM. 12.4
(identification of organizational victim limited to a good cause exception); FED. R. CRIM. 17(b)(3) (notice affording
victim an opportunity to move to quash subpoena for victim’s personal or confidential information); FED. R. CRIM. 18
(place of trial set with due regard for convenience of victims among others); FED. R. CRIM. 21(b) (transfer of place of
trial for convenience of victims among others); FED. R. CRIM. 28 (appointment of interpreters for victims); FED. R.
CRIM. 32(d)(2)(B) (presentence report must contain information relating to financial, social, psychological, and medical
impact on victims); FED. R. CRIM. 32(i)(4)(B) (court must address and permit victims who are present to be heard at
sentencing); FED. R. CRIM. 60 (victim’s rights).
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Who Is a Victim?
For the purposes of this chapter, the term “crime victim” means a person directly and
proximately harmed as a result of the commission of a Federal offense or an offense in the
District of Columbia. In the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the
representatives of the crime victim’s estate, family members, or any other persons
appointed as suitable by the court, may assume the crime victim’s rights under this chapter,
but in no event shall the defendant be named as such guardian or representative.24
The definition of “victim,” the question of deciding who should be afforded rights and who
should not be, was one of the issues that over the years fired debate during consideration of
proposals to amend the U.S. Constitution. The amendment proposals in the 108th Congress
(S.J.Res. 1/H.J.Res. 48) opted not to include a specific definition of victim, but referred to the
rights as those of the “victims of violent crimes.” In doing so, they excluded the victims of fraud,
regardless of how extensive or devastating the crime, a result some Members considered
unsatisfactory.25
Section 3771 suffers no such limitation.26 Instead, it borrowed language from the federal
restitution statutes, 18 U.S.C. §§ 3663 and 3663A, which, then as now, define a victim as “a
person directly and proximately harmed as a result of the commission of an offense for which
restitution may be ordered.”27 Section 3771 adopted the restitution provisions’ representational
language as well.28 However, it has nothing comparable to the explicit provision for schemes or
conspiracies found in the restitution statutes.29 Section 3771 is otherwise explicitly more
expansive. It encompasses all federal crimes and those of the District of Columbia.30 The
restitution statutes, on the other hand, are more limited.31 These differences notwithstanding, the
24 18 U.S.C. § 3771(e). The Federal Rules of Criminal Procedure adopt the same definition by cross reference: FED. R.
CRIM. P. 1(b)(11).
25 Cf. S.Rept. 105-409 (additional views of Sen. Hatch); Jayne W. Barnard, Allocution for Victims of Economic Crimes,
77 NOTRE DAME L. REV. 39 (2001).
26 Section 3771 applies to both violent and nonviolent crimes, United States v. Degenhardt, 405 F. Supp. 2d 1341,
1342-45 (D. Utah 2005). Past proposed constitutional amendments sometimes referred to the victims of felonies, e.g.,
H.J.Res. 64 (105th Cong.), H.J.Res. 173 (104th Cong.). The fact that Section 3771 simply refers to “crime” indicates
that the section is intended to apply to the victim of any federal crime, regardless of its classification. The issue of
whether misconduct that is punishable only with a monetary sanction should be considered a crime for purposes of
Section 3771 may be more problematic.
27 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2).
28 Both § 3663 and § 3663A provide: “In the case of a crime victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim’s estate,
family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights under
this chapter, but in no event shall the defendant be named as such guardian or representative.”
29 “For the purposes of this chapter, the term ‘crime victim’ means a person directly and proximately harmed as a result
of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves
an element of a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s
criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a crime victim who is under 18
years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of
the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the
crime victim’s rights under this chapter, but in no event shall the defendant be named as such guardian or
representative.” 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2) (language that does not appear in § 3771 in italics).
30 Id. § 3771(e). Coverage extends to the victims of federal conspiracy offenses. United States v. Allen, 364 F. Supp. 3d
1234, 1255 (D. Kan. 2019).
31 Section 3663A covers any federal offense that is: (A) “(i) a crime of violence, as defined in section 16; (ii) an offense
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courts have consulted their experience under the restitution statutes when construing the
definition of victim for purposes of the victims’ rights statute.32
Persons
Section 3771 and the restitution statutes speak of victims who are “persons” (“‘crime victim’
means a person”). Although in common parlance, this might be thought to restrict the class of
victims to human beings, general usage within the U.S. Code is to the contrary. Unless the context
suggests another intent, the word “person” as used in the U.S. Code is understood to “include
corporations, companies, associations, firms, partnerships, societies, and joint stock companies as
well as individuals.”33
Earlier restitution cases rejected arguments that only human beings could be “victims.”34 Perhaps
because the question is considered settled, the argument has disappeared, and later courts have
regularly found restitution appropriate for legal entities without commenting upon their want of
human status.35 Section 3771’s coverage of legal entities seems to have been generally assumed
and with little explicit discussion.36
The universal definition of person in 1 U.S.C. § 1 does not mention governmental entities, but
they too have been found qualified for restitution under the appropriate circumstances.37 The 2011
against property under this title, or under section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)), including
any offense committed by fraud or deceit; or (iii) an offense described in section 1365 (relating to tampering with
consumer products); and (B) in which an identifiable victim or victims has suffered a physical injury or pecuniary
loss.” 18 U.S.C. § 3663A(c)(1).
Section 3663 covers any federal offense, not covered by § 3663A, which is “an offense under this title [i.e., 18 U.S.C.],
[under] 21 U.S.C. §§ 841, 848(a), 849, 856, 861, 863 [relating to drug trafficking], or under section 5124, 46312,
46502, or 46504 of title 49 [relating aircraft offenses].” 18 U.S.C. § 3663(a)(1)(A).
32
In re McNulty, 597 F.3d 344, 350 n.6 (6th Cir. 2010) (“While we find our case law interpreting the VWPA and the
MVRA [the restitution statutes] to be persuasive, it is not binding on our interpretation of the CVRA [18 U.S.C. §
3771] for the purposes of determining whether an individual is a ‘crime victim’. . . . Whether the CVRA’s definition of
a ‘crime victim’ is best understood as co-extensive with the MVRA and VWPA definitions regarding offenses
qualifying for restitution will only be fully developed through further cases in this Circuit. . . . However . . . we find our
case law construing the VWPA and the MVRA persuasive, both for how the CVRA is to be interpreted procedurally
and for when an individual qualifies as a victim of a conspiracy.”); United States v. Atl. States Cast Iron Pipe Co., 612
F. Supp. 2d 453, 462 (D.N.J. 2009) (“This Court is of the view that . . . the definition of ‘victim’ under CVRA will be
interpreted consistent with existing and evolving case law under the VWPA and MVRA.”); United States v. Thuna, 382
F. Supp. 3d 166, 170 (D.P.R. 2019) (“Federal courts apply the same standard to the VWOA and the CVRA in
determining a claimant’s victim status.”); Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal
Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 BYU L. REV. 835, 857.
33 1 U.S.C. § 1. U.S. DEP’T OF JUST., ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE 8 (2011
ed.) (rev. May 2012) [hereinafter 2011 AG Guidelines].
34 United States v. Kirkland, 853 F.2d 1243, 1246 (5th Cir. 1988); United States v. Sunrhodes, 831 F.2d 1537, 1545-46
(10th Cir. 1987); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir. 1986).
35 E.g., United States v. Davenport, 445 F.3d 366, 374 (4th Cir. 2006) (credit card company); United States v.
Washington, 434 F.3d 1265, 1268-70 (11th Cir. 2006) (condominium association).
36 United States v. Ruzicka, 331 F. Supp. 3d 888, 898 (D. Minn. 2018) (concluding a corporation, directly and
proximately harmed, qualified as a victim for purposes of Section 3771); United States v. Rubin, 558 F. Supp. 2d 411,
418 (E.D.N.Y. 2008) (“The government does not contest that movants [RJP Investment Co., LLC, and Dixie Chris
Omni, LLC] are ‘victims’ for purposes of the CVRA, but rightly notes the existence of significant questions about
whether and when movants acquired vindicable [sic] rights under the Act.”); In re Loc. #46 Metallic Lathers Union,
568 F.3d 81, 85-87 (2d Cir. 2009) (union local was not a victim for purposes of § 3771, because the injury it claimed
was not “directly and proximately” caused by the offense to which the defendant pled guilty).
37 United States v. Ekanem, 383 F.3d 40, 42-43 (2d Cir. 2004) (“But the meaning of ‘victim’ under MVRA [the
Mandatory Victims Restitution Act, 18 U.S.C. § 3663A], contrary to defendant’s position, is not controlled by the
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AG Guidelines take the position that governmental entities are not eligible for “court enforceable
rights,” but may be entitled to restitution.38 Section 3771’s limited available case law indicates
that a governmental entity is not a person entitled to victim’s rights under the statute.39
Directly and Proximately Harmed
An earlier version of the restitution statutes authorized restitution for injuries and losses resulting
from certain offenses but made no mention of direct and proximate harm.40 “This [earlier]
language suggest[ed] persuasively that Congress intended restitution to be tied to the loss caused
by the offense of conviction,” the Supreme Court said in Hughey v. United States.41 The
implication might have been that restitution was appropriate where the loss would not have
occurred but for the offense conviction. Subsequent amendments both expanded and contracted
on that implication. Not all persons who suffer a loss as the direct result of an offense are
considered victims for purposes of the restitution statutes. The loss must be directly and
proximately caused by the offense. This means:
First: [r]estitution should not be ordered in respect to a loss which would not have occurred
regardless of the defendant’s conduct [i.e., losses that are not direct]. Second: Even if but
for causation is acceptable theory, limitless but for causation is not. Restitution should not
lie if the conduct underlying the offense of conviction is too far removed, either factually
or temporally, from the loss [i.e., if the offense is not proximate to the loss].42
A loss caused in part by intervening circumstances cannot be said to have been directly and
proximately caused by the offense of conviction, unless the intervening cause is related to or a
foreseeable consequence of that offense of conviction.43 The restitution statutes enlarge the victim
default definition of ‘person’ in the Dictionary Act—which excludes the Government—because that definition does not
apply if the ‘context [of a particular statute] indicates otherwise.’ . . . [W]e conclude that the context of the MVRA
indicates otherwise, so that the term ‘victim’ as used in that statute is not limited by the default definition of ‘person’ in
the Dictionary Act but instead includes the Government.”); see also United States v. Washington, 434 F.3d 1265, 126870 (11th Cir. 2006) (upholding a restitution order in favor of a police department whose vehicles a bank robber
damaged in his attempted getaway); United States v. Phillips, 367 F.3d 846, 863 (9th Cir. 2004) (Environmental
Protection Agency may be the qualified beneficiary of a restitution order); United States v. Caldwell, 302 F.3d 399,
419-20 (5th Cir. 2002) (State of Mississippi may be entitled to an award of restitution).
38 2011 AG Guidelines, supra note 32, at 12.
39 United States v. Kasper, 60 F. Supp. 3d 1177, 1178-79 (D.N.M. 2014); see also In re Her Majesty, 785 F.3d 1273,
1276 (9th Cir. 2015) (“We asked the parties to address whether petitioner, a foreign sovereign, is a ‘person’ who may
be a ‘crime victim’ under 18 U.S.C. § 3771(e). This appears to be an open question in this circuit, but we need not
reach it here in light of the disposition above.”).
40 18 U.S.C. §§ 3579, 3580 (1982 ed.).
41 495 U.S. 411, 418 (1990).
42 United States v. Fallon, 470 F.3d 542, 549 (3d Cir. 2005); see also United States v. Robertson, 493 F.3d 1322, 1334
(11th Cir. 2007) (“We have never defined the phrase ‘directly and proximately,’ but we agree with the definitions that
our sister circuits have adopted. The government must show not only that a particular loss would not have occurred but
for the conduct underlying the offense of conviction, but also that the causal connection between the conduct and the
loss is not too attenuated (either factually or temporally)” (internal quotation marks and citations omitted)); United
States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002).
43 United States v. Peterson, 538 F.3d 1064, 1075 (9th Cir. 2008) (“Defendant’s conduct need not be the sole cause of
the loss, but any subsequent action that contributes to the loss, such as an intervening cause must be directly related to
the defendant’s conduct. We have approved restitution awards that included losses at least one step removed from the
offense conduct itself, but the causal chain may not extend so far, in terms of the facts or the time span, as to become
unreasonable. The main inquiry for causation in investigation cases is whether there was an intervening cause, and if
so, whether this intervening cause was directly related to the offense.” (internal citations and quotation marks omitted));
Robertson, 493 F.3d at 1334 (“[W]e agree with the definitions that our sister circuits have adopted . . . .”); see also
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definition by including those directly harmed by an offense one of whose elements is a “scheme,
conspiracy or pattern.”44 Section 3771 features the restitution statutes’ “direct and proximate”
cause language, without the “scheme, conspiracy, or pattern” component.
Section 3771’s use of the phrase “directly and proximately harmed” nevertheless “encompasses
the traditional ‘but for’ and proximate cause analyses.”45
Crime Charged
Under the restitution statutes, restitution is available only for harm caused by the crime of
conviction.46 With the exception of victims of crimes committed in furtherance of a scheme,
conspiracy, or pattern conviction, victims of offenses, other than the crime of conviction, are not
entitled to restitution even if they were victims of offenses that were initially charged with the
crime of conviction or are indisputably related to the crime of conviction.47
The same cannot be said of the victims’ rights statute. Section 3771 is focused on the activities
and proceedings involving the victimizing offense before and after conviction; the restitution
sections are focused on the victimizing offense of conviction.48 Section 3771 and the restitution
statutes are similar, however, in that persons—harmed by crimes other than those of conviction in
the case of the restitution statutes or other than those that are the subject of a particular
United States v. Donaby, 349 F.3d 1046, 1054 (7th Cir. 2003) (finding a victim under the Restitution Act was harmed
by “a likely and foreseeable outcome of the crime”).
44 18 U.S.C. § 3663(a)(2) (emphasis added) (“For the purposes of this section, the term ‘victim’ means a person directly
and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in
the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern . . . .”); 18
U.S.C. § 3663A(a)(2) (same).
45 In re Rendon-Galvis, 564 F.3d 170, 175 (2d Cir. 2009) (citing In re Antrobus, 519 F.3d 1123, 1126 (10th Cir. 2008)
(Tymkovich, J., concurring); United States v. Sharp, 463 F. Supp. 2d 556, 567 (E.D. Va. 2006)); see also United States
v. Greig, 717 F.3d 212, 223 (1st Cir. 2013); United States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012); In re Fisher, 649
F.3d 401, 402-03 (5th Cir. 2011); In re McNulty, 597 F.3d 344, 350-52 (6th Cir. 2010); In re Thuna, 382 F. Supp. 3d
166, 170 (D.P.R. 2019); Morris v. Nielsen, 374 F. Supp. 3d 239, 251-52 (E.D.N.Y. 2019); United States v. Atl. States
Cast Iron Pipe Co., 612 F. Supp. 2d 453, 469 (D. N.J. 2009).
46 United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015); United States v. Kieffer, 794 F.3d 850, 853-54 (7th Cir.
2015); In re Loc. #46 Metallic Lathers Union, 568 F.3d 81, 85-86 (2d Cir. 2009); United States v. Stennis-Williams, 7
F.3d 927, 930 (8th Cir. 2009); United States v. Arledge, 553 F.3d 881, 898 (5th Cir. 2008).
47 Kieffer, 794 F.3d at 853-54 (defendant confessed to robbing six banks, and pled guilty to robbing three of them; the
trial court had no authority to order restitution paid to the three banks not covered by the plea); In re Loc. #46 Metallic
Lathers Union, 568 F.3d at 86-87 (union whose members were paid “off the books” using laundered money and which
would have received dues check-offs had those members been paid above board was not a victim of the employer
convicted of money laundering); United States v. Rand, 403 F.3d 489, 493 (7th Cir. 2005) (identity thief could only be
required to make restitution to those victims covered by his plea agreement); United States v. Randle, 324 F.3d 550
(7th Cir. 2003) (defendant charged with defrauding three victims could only be ordered to pay restitution to the victims
covered by his plea agreement); United States v. Elias, 269 F.3d 1003, 1021-22 (9th Cir. 2001) (defendant convicted of
making a false statement concerning his handling of hazardous waste could not be ordered to pay restitution to a victim
harmed by exposure to the waste); cf. United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005) (defendant convicted
of fraudulent use of his employer’s credit card could not be ordered to make restitution for credit card charges incurred
prior to the time covered by his indictment and conviction).
48 United States v. Stewart, 552 F.3d 1285, 1288-89 (11th Cir. 2008) (“The CVRA defines crime victim as any ‘person
directly and proximately harmed as a result of the commission of a Federal offense.’ To determine a crime victim, then,
first we identify the behavior constituting ‘commission of a Federal offense.’ Second, we identify the direct and
proximate effects of that behavior on parties other than the United States . . . . The CVRA . . . does not limit the class of
crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the
charging document.”).
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proceeding in the case of the victims’ rights statute—are unlikely to be able to claim the benefits
of a victim. In both instances, individuals may lose or never acquire the benefit of victim status
during the course of criminal proceedings, if charges covering the crimes of which they are the
victim are dropped, dismissed, or never filed, even though related crimes are or continue to be
prosecuted.49
The Justice Department’s Office of Legal Counsel (OLC) believes “the CVRA is best read as
providing that the rights identified in Section 3771(a) are guaranteed from the time that criminal
proceedings are initiated (by complaint, information, or indictment) and cease to be available if
all charges are dismissed either voluntarily or on the merits (or if the Government declines to
bring formal charges after the filing of a complaint).”50 The 2011 AG Guidelines make the same
point: “[T]he particular charges filed in a case will define the group of individuals with CVRA
rights. . . . Absent a conviction, a victim’s CVRA rights cease when charges pertaining to that
victim are dismissed either voluntarily or on the merits, or if the Government declines to bring
formal charges after filing a complaint.”51
Congress responded to the OLC opinion with a 2015 amendment that assures victims of the right
to notification of plea and deferred prosecution agreements.52 Section 3771, under other
circumstances, moreover, has been found to afford the obvious victim of a clearly identifiable
federal crime at least some of its benefits notwithstanding the absence of a charge or even a
49 See United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (“While the offense charged against a
defendant can serve as a basis for identifying a ‘crime victim’ as defined in the CVRA, the class of victims with
statutory rights may well be broader. Specifically, courts must decide whether the CVRA accords rights to persons
harmed by any uncharged criminal conduct attributed to the defendant. . . . In this regard, the usual methods of
determining legislative intent produce inconsistent results. The law’s sponsors explicitly advocated such a broad
reading of the statute in the Senate floor debate. As Senator Kyl explained, subsection (e) employs ‘an intentionally
broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim
of the count charged.’ Senate Debate at [150 Cong. Rec.] S4270 (statement of Sen. Kyl) (emphasis added); id.
(statement of Sen. Feinstein agreeing with the same). On the other hand, the full Congress passed the bill knowing that
similar language in an earlier victims’ rights bill had been interpreted not to refer to uncharged conduct. In Hughey v.
United States, 495 U.S. 411 (1990), the Supreme Court held that the 1982 Victim Witness Protection Act, 18 U.S.C. §
3663(a)(2), authorizes restitution only for loss caused by the specific conduct which forms the basis for the offense of
conviction. Since the statute at issue in Hughey and the CVRA use similar definitions of ‘victim,’ it appears that the
same reasoning would exclude victims of uncharged conduct from the class of those entitled to participatory rights
under the new law. The latter view is bolstered by the House report on the CVRA, which explicitly noted that 18
U.S.C. § 3771(a)(6) ‘makes no changes in the law with respect to victims’ ability to get restitution.’ H.Rept. 108-711
(2004). . . . I will presume that any person whom the government asserts was harmed by conduct attributed to a
defendant, as well as any person who self-identifies as such, enjoys all of the procedural and substantive rights set forth
in § 3771.”); United States v. Thuna, 382 F. Supp. 3d 166, 170 n.2 (D.P.R. 2019) (“While a claimant seeking victim
status may believe that’s a defendant should have been charged with an additional or different crime, the CVRA clearly
states that ‘nothing in this [statute] shall be construed to impair the prosecutorial discretion of the United States.’”)
(quoting 18 U.S.C. § 3771(d)(6)); see also 2011 AG Guidelines, supra note 32, at 8 (“CVRA)] rights attach when
criminal proceedings are initiated by complaint, information, or indictment. If the defendant is convicted, CVRA rights
continue until criminal proceedings have ended. For example, CVRA rights continue through any period of
incarceration and any term of supervised release, probation, community correction, alternatives to incarceration, or
parole. Absent a conviction, a victim’s CVRA rights cease when charges pertaining to that victim are dismissed either
voluntarily or on the merits, or if the government declines to bring formal charges after filing a complaint.”).
50 U.S. DEP’T OF JUST., OFF. OF LEGAL COUNS. THE AVAILABILITY OF CRIME VICTIMS’ RIGHTS UNDER THE CRIME
VICTIMS’ RIGHTS ACT OF 2004 1 (Dec. 17, 2010).
51 2011 AG Guidelines, supra note 32, at 8.
52 18 U.S.C. § 3771(a)(9) (“The right to be informed in a timely manner of any plea bargain or deferred prosecution
agreement.”); see also H.Rept. 114-7, at 7-8 (2015).
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suspect.53 And other statutes or rules sometimes fill the void when a victim fails to qualify under
Section 3771.54
Family of Victims
Section 3771, like the restitution statutes, states that in the case of a deceased or incapacitated
victim, “the legal guardians of the crime victim or the representatives of the crime victim’s estate,
family members, or any other persons appointed as suitable by the court, may assume the crime
victim’s rights.” This suggests that family members are not themselves considered victims. It
implies that one of the parents and other relatives of an adult homicide victim may assume the
victim’s rights, but otherwise they are entitled to none of the rights found in the statute. This is
not the case. Family members do not lose their status as victims by virtue of the possible
53 E.g., 18 U.S.C. § 3771(a)(8) (The right to be treated with fairness and with respect for the victim’s dignity and
privacy); In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (recognizing the right to confer prior to the filing of charges);
Does v. United States, 817 F. Supp. 2d 1337, 1342 (S.D. Fla. 2011) (“The United States argues that . . . the CVRA
applies only after formal charges are filed. The Court finds this argument unavailing.”); subsequently, Doe v. United
States, 950 F. Supp.2d 1262, 1267 (S.D. Fla. 2013) (“[T]he court finds that the CVRA is properly interpreted to
authorize the rescission or ‘re-opening’ of a prosecutorial agreement—including a non-prosecution arrangement—
reached in violation of a prosecutor’s conferral obligations under the statute.”); still later, In re Wild, 955 F.3d 1196,
1205, vac’d for rehearing en banc, 967 F.3d 1285 (11th Cir. 2020). The Eleventh Circuit subsequently held en banc:
“the CVRA does not provide a private right of action authorizing crime victims to seek judicial enforcement of CVRA
rights outside the confines of a preexisting proceeding [i.e. pre-charge].” In re Wild, 994 F.3d 1244, 1269 (11th Cir.
2021).
54 E.g., United States v. Smith, 967 F.3d 198, 215-16 (2d Cir. 2020) (“Smith further argues that the district court
procedurally erred when it allowed KN1 [the victim of Smith’s earlier crime] to speak during the sentencing hearing.
But even if Smith is correct that KN1 did not qualify as a statutory victim of Smith’s most recent child pornography
offenses, see 18 U.S.C. § 3771(e)(2)(A) … Congress has instructed that ‘[n]o limitation shall be placed on the
information concerning the background, character, and conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing an appropriate sentence,’ 18 U.S.C. § 3661.”).
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appointment of a representative of the incapacitated or deceased victim.55 The 2011 AG
Guidelines simply paraphrase the statutory language and thus do not weigh in on the issue.56
Crimes Under What Law
Various past proposed constitutional amendments would have covered the victims of crimes
committed in violation of state law, the U.S. Code, Code of Military Justice, the D.C. Code and/or
U.S. territorial codes.57 Section 3771 is more modest. It applies to the victims harmed as a result
of “the commission of a Federal offense or an offense in the District of Columbia.”58 It clearly
does not apply to the victims of state crimes. Section 3771 should probably not be read to extend
rights to the victims of the crimes proscribed in any of the territorial codes and the Uniform Code
of Military Justice. The courts are likely to conclude that Congress did not intend to cover victims
of offenses under these codes, since they had been expressly included in earlier proposed victims’
rights amendments to the Constitution; since these codes frequently have a victims’ rights
provision;59 and since the victims of D.C. crimes are specifically mentioned.
Section 3771 apparently covers victims of juvenile delinquency with respect to misconduct that in
the case of an adult offender would have been a violation of federal or D.C. law. Section 3771
rights with respect to juvenile proceedings, however, may depend upon whether the juvenile
55 The fact that a representative has been appointed for an incapacitated or deceased victim does not deprive the
victim’s family of their status as victims. See United States v. Lawrence, 735 F.3d 385 (6th Cir. 2014) (“Each of the
family members allowed to attend the trial and sentencing proceedings was a victim in his or her own right. None of
them was present as a court-designated representative of the deceased victim. . . . Under a straightforward reading of
the statutes, each family member met the definitions of victim under 18 U.S.C. § 3771 and 42 U.S.C. § 10607(e)(2).”);
United States v. Pirk, 284 F. Supp. 3d 445, 459 n.3 (W.D.N.Y. 2018) (“As a family member of [murder victim]
Szymanski, who is now deceased, Kristen is a victim for purposes of CVRA.”); United States v. Johnson, 362 F. Supp.
2d 1043, 1055-56 (N.D. Iowa 2005) (“In this case, the government has identified the following ‘victim witnesses’:
Terry DeGeus’s father, mother, sister, two brothers, ex-wife, and daughter; Lori Duncan’s father, mother, brother and
sister, who are, respectively Kandi and Amber Duncan’s grandfather, grandmother, uncle and aunt; Kandi and Amber
Duncan’s father, other grandfather, and other grandmother; and Greg Nicholson’s ex-wife, who is the mother of his
children, and two daughters. Johnson does not dispute, and the court expressly finds, that each of these persons is either
‘a person directly and proximately harmed as a result of the commission of’ one or more of the federal offenses charged
against Johnson, that is, the murders of Greg Nicholson, Lori Duncan, Kandi Duncan, Amber Duncan, or Terry
DeGeus, or that, owing to the deaths of these alleged murder victims in this case, the murder victims’ family members
identified by the government are ‘representatives of the crime victim’s estate’ or ‘family members.’ Therefore, these
persons qualify for the rights afforded by § 3771.”); United States v. Hairson, 888 F.2d 1349, 1355 (11th Cir. 1989)
(noting, in dicta with regard to the restitution statute prior to the amendment that limited the restitution to direct and
proximate harm, that in the legislative history the Senate Report, S.Rept. 97-532, at 13 (1982), “states that . . . the
definition of ‘victims’ is purposely broad to include indirect victims, such as family members of victims”); but see
United States v. Marcello, 370 F. Supp. 2d 745, 746-50 (N.D. Ill. 2005) (declining a motion to permit the son of a
homicide victim to make an oral statement (rather than a written statement) at sentencing but treating without
discussion the motion as that of a victim).
56 2011 AG Guidelines, supra note 32, at 8.
57 E.g., S.J.Res. 3 (106th Cong.) (“The rights and immunities established by this article shall apply in Federal and State
proceedings, including military proceedings to the extent that the Congress may provide by law, juvenile justice
proceedings, and proceedings in the District of Columbia and any commonwealth, territory, or possession of the United
States.”); H.J.Res. 64 (106th Cong.) (same).
58 Some may consider the inclusion of the District of Columbia unusual because the D.C. Code already features
extensive crime victims’ rights provisions, D.C. CODE §§ 23-1901 to 23-1906. Victims would appear to be free to claim
the rights afforded by either § 3771 or the D.C. Code provisions.
59 See, e.g., GUAM CODE ANN. tit. §§ 160.10 et seq.; P.R. LAWS ANN. tit. 25 §§ 973 et seq.; V.I. CODE ANN. tit. 34
§§ 201 et seq.; DEFENSE DEP’T DIRECTIVE 1030.1 (Apr. 13, 2004).
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proceedings are open or closed.60 Moreover, the 2011 AG Guidelines assert that federal juvenile
delinquency provisions “restrict[] the type of information that may be disclosed to victims about
investigations and proceedings regarding juvenile offenders unless the juvenile waives the
restrictions or has been transferred for criminal prosecution as an adult.”61
Who Is Not a Victim
The Accused
A person accused of the crime may not obtain any form of relief under this chapter. 62
Some of the constitutional amendment proposals relied on an assertion that “only” victims or
their representatives could claim their benefits,63 but most included an explicit disclaimer in one
form or another that barred defendant’s use of the proposed amendment.64 The provision’s intent
here is apparent, and sparked little debate over the course of its legislative history.65
A corporation or other legal entity may incur criminal liability by virtue of the misconduct of a
rogue officer or employee.66 Thus, under some circumstances, the entity might be considered both
an offender and a victim, but not here. A corporation may not claim restitution for the losses it
incurs as consequences of its executives’ misconduct.67
The Right to Be Reasonably Protected
from the Accused
The right to be reasonably protected from the accused.68
Section 3771 lists the right to be reasonably protected from the accused first among its victims’
rights. Section 3771’s components can be traced to a comparable provision in the 108th
Congress-proposed constitutional amendments in most instances. This one is a little different. The
constitutional amendment proposals spoke of a right to have judicial decisions made with an eye
to victim safety.69 The previous language focused on “adjudicative decisions”; the new language
60 United States v. L.M., 425 F. Supp. 2d 948, 957 (N.D. Iowa 2006) (denying the motion of the family of a deceased
minor victim to attend the hearing held to determine whether to transfer the juvenile for trial as an adult based on the
court’s decision to close the proceedings to the public).
61 2011 AG Guidelines, supra note 32, at 13 (referring to the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 50315042).
62 18 U.S.C. § 3771(d)(1). See also United States v. Ward, 732 F.3d 175, 187 (3d Cir. 2013) (defendant has no standing
to ask an appellate court to vacate his sentence for failure of the trial court to order victim restitution).
63 E.g., S.J.Res. 44 (105th Cong.); H.J.Res. 71 (105th Cong.).
64 E.g., S.J.Res. 65 (104th Cong.) (“nor shall anything in this article provide grounds for the accused or convicted
offender to obtain any form of relief”); S.J.Res. 6 (105th Cong.); H.J.Res. 88 (107th Cong.); S.J.Res. 1 (108th Cong.).
65 “Importantly, however, the bill does not allow the defendant in the case to assert any of the victim’s rights to obtain
relief. This prohibition prevents the individual accused of the crime from distorting a right intended for the benefit of
the individual victim into a weapon against justice.” 150 Cong. Rec. 7303 (2004) (remarks of Sen. Feinstein).
66 In re Wellcare Health Plans, Inc., 754 F.3d 1234, 1240 (11th Cir. 2014) (citing United States v. Dotterweich, 320
U.S. 277, 281 (1943); N.Y. Cent. & Hudson R.R. Co. v. United States, 212 U.S. 481, 492-92 (1909)).
67 In re Wellcare Health Plans, Inc., 754 F.3d at 1238-39.
68 18 U.S.C. § 3771(a)(1). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding
provision.
69 S.J.Res. 1 (108th Cong.) (“the right to adjudicative decisions that duly consider the victim’s safety”); H.J.Res. 48
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has no such limitation. The earlier language seemed to impose an obligation to guard against
threats to victim safety, from whatever source; the new language establishes a right to the victim
to be protected against the accused. Use of the term “accused” and portions of the scant
legislative history might be read to imply that the right expires with the conviction of the accused,
at which point he would ordinarily be referred to as the offender.70 Nevertheless, the colloquy on
the floor between two of the principal Senate sponsors ended with the comment that they
considered the term “accused” to mean “convicted” as well.71 Earlier in their discussion, they
summarized the right simply using a trial protection example.72
The clause appears to have been the subject of little judicial construction.73 One court understood
the term “accused” to mean that the right does not attach until a person has been “accused by
criminal complaint, information or indictment.”74 A second court observed that “[r]egardless of
what this right might entail outside the bail context, it appears to add no new substance to the
protection of crime victims afforded by the Bail Reform Act, which already allows a court to
order reasonable conditions of release or the detention of an accused defendant to ‘assure . . . the
safety of any other person’” (18 U.S.C. § 3142(c)(1)).75 As will be noted below, victims
elsewhere in Section 3771 are entitled to notice and to be heard with respect to the release of an
accused.76 Moreover, the protection clause provided the stimulus for an amendment to Rules 12.1
and 17(c)(3) of the Federal Rules of Criminal Procedure relating to the disclosure of the addresses
and telephone numbers of Government witnesses77 and to subpoenas for personal or confidential
information about victims,78 respectively.
(108th Cong.).
70 150 Cong. Rec. 7301 (2004) (remarks of Sen. Feinstein) (“I would like to turn to the bill itself and address the first
section (a)(1), the right of the crime victim to be reasonably protected. Of course, the Government cannot protect the
crime victim in all circumstances. However, where reasonable, the crime victim should be provided accommodations
such as a secure waiting area, away from the defendant before and after and during breaks in the proceedings.”).
71 Id. at 7304 (remarks of Sens. Feinstein and Kyl) (“One final point. Throughout this act, reference is made to the
‘accused.’ Would the Senator also agree that it is our intention to use this word in the broadest sense to include both
those charged and convicted so that the rights we establish apply throughout the criminal justice system? MR. KYL.
Yes, that []is my understanding.”).
72 Id. at 7301 (remarks of Sen. Feinstein).
73 United States v. Rubin, 558 F. Supp. 2d 411, 420 (E.D.N.Y. 2008) (“In the only known case to interpret this
provision . . . .” (citing United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005)).
74 Id. Although the victims in Rubin were concerned about the safety of their property rather than of their person, the
court made no effort to suggest that the right was limited to protection from physical harm.
75 Turner, 367 F. Supp. 2d at 332.
76 18 U.S.C. § 3771(a)(2), (4).
77 FED. R. CRIM. P. 12.1(b)(1)(B) (“If the government intends to rely on a victim’s testimony to establish that the
defendant was present at the scene of the alleged offense and the defendant establishes a need for the victim’s address
and telephone number, the court may: (i) order the government to provide the information in writing to the defendant or
the defendant’s attorney; or (ii) fashion a reasonable procedure that allows preparation of the defense and also protects
the victim’s interests.”).
78 FED. R. CRIM. P. 17(c)(3)(“After a complaint, indictment, or information is filed, a subpoena requiring the production
of personal or confidential information about a victim may be served on a third party only by court order. Before
entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so
that the victim can move to quash or modify the subpoena or otherwise object.”).
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Notice
The right to reasonable, accurate, and timely notice of any public court proceeding, or any
parole proceeding, involving the crime or of any release or escape of the accused. 18 U.S.C.
§ 3771(a)(2).
Officers and employees of the Department of Justice and other departments and agencies
of the United States engaged in the detection, investigation, or prosecution of crime shall
make their best efforts to see that crime victims are notified of, and accorded, the rights
described in subsection (a) . . . . Notice of release otherwise required pursuant to this
chapter shall not be given if such notice may endanger the safety of any person. 79
In a case where the court finds that the number of crime victims makes it impracticable to
accord all of the crime victims the rights described in subsection (a), the court shall fashion
a reasonable procedure to give effect to this chapter that does not unduly complicate or
prolong the proceedings.80
Notice allows victims to assert their rights, facilitates their participation, assures them that justice
is being done, and affords them the opportunity to take protective measures when the accused is
at large.81 Section 3771’s notification rights are subject to several limitations, some explicit, some
implicit. The section explicitly excuses a failure to notify victims of the release of an accused
when to do so might be dangerous,82 and it permits the courts to seek reasonable accommodations
when the number of victims in a given case precludes strict compliance with the section’s
demands.83
The implicit limitation is constitutional. Under some circumstances, the manner in which notice is
provided may intrude upon the rights of the accused to an impartial jury trial or other
constitutional rights of the accused.84 Under such circumstances, the statutory rights of the victim
must yield.
79 18 U.S.C. § 3771(c)(1), (3). The corresponding provision in Rule 60(a)(1) of the Federal Rules of Criminal
Procedure provides: “The government must use its best efforts to give the victim reasonable, accurate, and timely
notice of any public court proceeding involving the crime.”
80 18 U.S.C. § 3771(d)(2).
81 150 Cong. Rec. 7301-02 (2004) (remarks of Sens. Kyl and Feinstein).
Notice also allows victims to evaluate whether to begin civil proceedings against those associated with an offense but
who may not have been prosecuted. See, e.g., United States v. Crompton Corp., 399 F. Supp. 2d 1047, 1051 (N.D. Cal.
2005) (“Defendant requests redaction of [Defendant’s CEO] Calarco’s name because it wants to shield his identity
from civil plaintiffs that have sued Defendant in dozens of lawsuits across the country. . . . [R]edacting Calarco’s name
would violate the Crime Victims’ Rights Act. Here, the plaintiffs in the additional civil lawsuits filed against Defendant
are those who were directly and proximately harmed as a result of the commission of the antitrust violation. Therefore,
the Court should be particularly sensitive to ensuring they are given full access to the proceedings and the Plea
Agreement. Accordingly, the Court finds that redacting Calarco’s name from the Plea Agreement would violate the
Crime Victims’ Rights Act.”).
82 18 U.S.C. § 3771(c)(3).
83 Id. § 3771(d)(2).
84 United States v. Grace, 401 F. Supp. 2d 1057, 1063-64 (D. Mont. 2005) (“Most of the statements made by the
[Justice Department Victim Witness] Specialist are probably within the ‘legitimate law enforcement purpose’ exception
[of the local rule barring pretrial publicity] because there were made in the course of fulfilling of DOJ’s duties under
the Justice For All Act. This is so even if the statements should not have been made in the manner they were. Although
these statements were made in public and disseminated in at least one local newspaper, they relate to topics that the
DOJ is arguably required to address under the Justice For All Act, including a right to have timely notice of
proceedings.”). The court subsequently denied the defendant’s motion for a change of venue predicated upon
prejudicial pretrial publicity. United States v. Grace, 408 F. Supp. 2d 998, 1020-21 (D. Mont. 2005) (In doing so, the
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Section 3771 originally had one curious omission. Until amended to include Section 3771(a)(10),
it did not give victims the right to notification of their rights; it merely imposed an obligation
upon Government officials to “make their best efforts to see that crime victims are notified” of
them.85
This notification of the rights was a component of the early constitutional amendment
proposals,86 which followed the lead of several state constitutions and statutes.87 It was originally
seen as a victim’s counterpart to the Miranda warnings enjoyed by an accused and as a
prerequisite if the proposed amendments were to function effectively.88 There were objections,
however, that the warnings were out of character with the other rights conveyed by the
Constitution and might pose implementation problems—objections that apparently ultimately
prevailed,89 since the provision was not included in later proposals.90
Section 3771(a)(2)’s notice clause, in this respect and others, is essentially the same as its
forerunner in the 108th Congress resolutions to amend the Constitution.91 It differs slightly in that
it makes special provisions for parole proceedings and insists that notice be “accurate” as well as
“reasonable and timely.” Moreover, unlike its predecessors, the clause is accompanied by
court found it unnecessary to consider the government’s argument that the interests of the victim community should be
counted against the motion because the court did not “believe community interests warrant separate consideration
beyond the Ninth Circuit’s presumption against transfer of venue based on presumed prejudice.”).
85 18 U.S.C. § 3771(c)(1).
86 E.g., S.J.Res. 65 (104th Cong.); H.J.Res. 71 (105th Cong.); S.J.Res. 3 (106th Cong.).
87 E.g., ARIZ. CONST. art. 2, § 2.1(12); IND. CODE ANN. § 35-40-5-9; LA. CONST. art.1, § 25; MD. D. RTS. art. 47(b);
MASS. GEN. LAWS ANN. ch. 258B, § 3; N.J. STAT. ANN. § 52:4B-42; ORE. CONST. art. I, § 42; TENN. CONST. art. I, § 35;
WYO. STAT. §1-40-203.
88 “Victims’ rights are of little use if victims remain unaware of them. Since victims deserve the eight basic rights [of
the amendment], they should be informed about those rights. Not only does this serve to ensure that victims can
exercise their rights, but it can even improve the functioning of the criminal justice process. Victims who have been
informed about their role in the process are in a better position to cooperate with police, prosecutors, and courts to bring
about a proper resolution of the case. Victims deserve appropriate notice of their rights in the process.” S.Rept. 106254, at 26.
89 “I have significant concerns about the necessity and wisdom of . . . providing that covered victims shall have right ‘to
reasonable notice of the rights established’ by the amendment. No other constitutional provision mandates that citizens
be provided notice of the rights vested by the Constitution—not even the court-created Miranda warnings are
constitutionally required. In an analogous context, Justice O’Connor noted that ‘the free exercise clause is written in
terms of what the Government cannot do to the individual, not in terms of what the individual can exact from the
Government,’ This clause in the proposed victims’ rights amendment would create an affirmative duty on the
Government to provide notice of what rights the Constitution provides, turning this formulation on its head.
“Moreover, I do not believe that sufficient consideration has been given to the practical aspects of the requirement.
Which governmental entity would be required to provide the notice? Would it be the police, when taking a crime
report? The prosecutor prior to seeking an indictment or filing an information? Or perhaps the court at some other stage
in the process? At what point would the right attach—when the crime is committed? When an arrest is made? . . . Does
the term presume that the government entity providing notice must have assimilated the Supreme Court’s latest
jurisprudence interpreting victims’ rights when giving notice? . . . .
“Finally, Congress will be empowered . . . to enforce its provisions presumably including the question of how
governmental entities must provide victims notice. Will this permit Congress to micromanage the policies and
procedures of our state and local law enforcement agencies, prosecutors, and courts? I believe greater consideration
must be given to these questions before a right to notice of the rights guaranteed by the amendment is included in the
Constitution,” S.Rept. 105-409, at 43-4 (additional views of Sen. Hatch).
90 E.g., S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
91 Id.
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language that imposes an obligation on the Government to advise victims of their rights under the
section and to inform them that they may consult an attorney concerning those rights.92
The notice clause has several distinctive features:
the notice rights apply only with respect to public court proceedings and parole
proceedings;
the rights attach to those proceedings involving the crime but not necessarily to
all those related to the crime;
victims are entitled to reasonable, accurate and timely notice; and
victims are entitled to notice of the release or escape only of the accused.
Public Proceedings
The public proceedings limitation has been a feature of the victims’ rights proposals for some
time. Speaking of the past constitutional proposals, Senate Judiciary Committee reports pointed
out that:
Victims’ rights under this provision are also limited to “public” proceedings. Some
proceedings, such as grand jury investigations, are not open to the public and accordingly
would not be open to the victim. Other proceedings, while generally open, may be closed
in some circumstances. For example, while plea proceedings are generally open to the
public, a court might decide to close a proceeding in which an organized crime underling
would plead guilty and agree to testify against his bosses. See 28 C.F.R. § 50.9. Another
example is provided by certain national security cases in which access to some proceedings
can be restricted. See The Classified Information Procedures Act, 18 U.S.C. app. 3. A
victim would have no special right to attend. The amendment works no change in the
standards for closing hearings, but rather simply recognizes that such nonpublic hearings
take place.93
When the proceedings are closed at the discretion of the court, however, the presence of the
statutory rights may reinforce an inclination to nevertheless approve victim notification of their
existence and outcome.94 “Public proceedings” for purposes of Section 3771 are those that
involve written, rather than oral, presentations to the court.95
92 “(1) Government. Officers and employees of the Department of Justice and other departments and agencies of the
United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that
crime victims are notified of, and accorded, the rights described in subsection (a). (2) Advice of attorney. The
prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the
rights described in subsection (a). (3) Notice. Notice of release otherwise required pursuant to this chapter shall not be
given if such notice may endanger the safety of any person.” 18 U.S.C. § 3771(c).
93 S.Rept. 108-191, at 34; see also S.Rept. 106-254, at 30, S.Rept. 105-409, at 25.
94 United States v. L.M., 425 F. Supp. 2d 948, 957-58 (N.D. Iowa 2006) (denying victims the right to attend closed
juvenile proceedings, but granting the government’s request to notify them and to unseal the record of the proceedings
except with respect to juvenile’s identification and information that would lead to his identification); United States v.
C.S., 968 F.3d 237, 250-51 (3d Cir. 2020) (noting that the district court did not abuse its discretion when, after finding
C.S. delinquent for threatening a church in violation of 18 U.S.C. §875(c), it ordered notification of church leaders of
the threat under Section 3771(a)(2), but without identifying C.S. and denying the government’s request to notify the
police because the police were not victims of the threat).
95 United States v. Ebbers, 432 F. Supp. 3d 421, 425 (S.D.N.Y. 2020) (“Congress thus gave victims the right to speak at
public proceeding in court, but Congress did not create any separate right to be heard when a decision on a motion for
compassionate release is made based only on written presentations of the parties.”) (citing United States v. Burkholder,
590 F.3d 1071, 1075 (9th Cir. 2010); Kenna v. U.S. Dist. Court for Cent. Dist. Cal., 435 F.3d 1011, 1014-15 (9th Cir.
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Parole Proceedings
Congress abolished parole for those convicted of federal crimes committed after November 1,
1987.96 Parole for felonies under the laws of the District of Columbia was abolished pursuant to
congressional command effective August 5, 2000.97
Involving the Crime
The breadth of the phrase “involving the crime” used to describe the public proceedings covered
by the notification right may raise questions too. The phrase clearly contemplates more than trial.
Pretrial and post-trial hearings involving motions to dismiss, to suppress evidence, to change
venue, to grant a new trial, and any of the host of similar proceedings that flow to or from a
criminal trial seem to come within the term’s meaning. The Senate reports’ discussion of
proceedings “related to the crime” in earlier versions, for instance, specifically mentioned
appellate proceedings.98
The same reports indicate that, at least at one time, covered release proceedings were understood
to include those involving “a release [from custody] of a defendant found not guilty of a crime by
reason of insanity and then hospitalized in custody for further treatment.”99 Crime relatedness,
understood in such terms, would presumably carry victim notice rights to a fairly wide range of
civil and quasi-civil proceedings (e.g., habeas and civil forfeiture proceedings, and extradition
hearings, to name but a few).
Historical proposals, which speak in terms of “proceedings related to the crime,” were thought to
perhaps embody notice rights for the victims of a defendant’s past crimes, and victims of charges
that had been dropped or dismissed, as well as victims of charges that had resulted in acquittal.100
The change to “proceedings involving the crime” might be considered a repudiation of that
construction.101
2006) (notifying victims and affording them an opportunity to be heard on whether to conduct a hearing)); but see
United States v. Williams, 456 F. Supp. 3d 414, 415 (D. Conn. 2020) (“[T]he Court held a telephonic hearing on the
motion [for compassionate release], at which the Government, after having notified and obtained the views of victims
in this case, informed the Court that it does not object to Mr. Williams’s motion.”); United States v. Haynes, 456 F.
Supp. 3d 496, 506 (E.D.N.Y. 2020) (“[T]he Court understands the letter as alerting the Court that, in the event a
hearing were held on Haynes’s current motion [for reduction of sentence], the government would seek to locate and
notify the victims of Haynes’s crimes of their rights under the CVRA to appear. . . . As this memorandum reflects,
however, the Court’s decision is based on the written submissions, so the CVRA is not implicated.”).
96 P.L. 98-473, 98 Stat. 2027 (1984).
97 P.L. 105-33, § 11212, 111 Stat. 741 (1997).
98 S.Rept. 106-254, at 31, S.Rept. 105-409, at 26.
99 Id. at 36 and 30.
100 “Frequently, criminal defendants are suspected to have committed crimes for which they are never charged or for
which charges are later dropped, even though significant evidence may exist that the defendant did indeed commit the
crime. Do the victims of these crimes have rights under the proposed amendment? If so, are they the same as the rights
of the victims of charged counts or of the defendant? Such victims, of course, would have the same rights to notice and
allocution relating to conditional release, the acceptance of negotiated pleas (perhaps substantially complicating plea
bargains) and sentencing.” S.Rept. 105-409, at 42 (additional views of Sen. Hatch).
Under existing federal law, sentencing courts are to consider “relevant conduct” that is “part of the same course of
conduct or common scheme or plan as the offense of conviction,” U.S.S.G. § 1B1.3(a)(2), that includes misconduct for
which the defendant has never been charged or even for which he may have been acquitted. See United States v. Watts,
519 U.S. 148 (1997).
101 One witness, however, thought it more likely to confirm an intent to embrace civil proceedings. Senate Hearing V,
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The Senate Judiciary Committee, however, indicated that no such repudiation was intended in the
case of the proposed constitutional amendment, and stated simply that the “public proceedings are
those ‘relating to the crime.’”102 In doing so, it might be thought to have embraced earlier
descriptions of proceedings related to the crime, even though the Committee’s examples in the
108th Congress were much more modest in some places.103 Section 3771 was the subject of a
colloquy on the floor between its Senate sponsors, which is somewhat ambiguous but seems to
confirm the proceedings as to which notice is due include appellate proceedings.104 Section 3771
eliminates the speculation previously possible that the rights might be available in an
administrative context, such as in administrative immigration proceedings, by confining the
proceedings covered to “court” and parole proceedings.
Reasonable, Accurate, and Timely Notice
The inclusion of a “timeliness” requirement to the notice right seems significant, because it would
appear to greatly reduce the prospect of “reasonable” but ineffective notice. Yet the committee
report issued after its addition in the constitutional amendment proposal makes no note of it and
continues to describe the obligation in the same terms used prior to the change.105 Under preaddition proposals it was unclear whether reasonableness was to be judged by the level of official
effort or by the effectiveness of the effort. The Senate reports noted that heroic efforts were not
expected but due diligence was.106 The obvious purpose for the right to notice was to provide a
gateway to the amendment’s other rights. Even without the addition of the clarifying “timely”
requirement, what was reasonable might have been judged by whether the efforts were calculated
to permit meaningful exercise of the amendment’s other rights.107
supra note 17, at 162; House Hearing V, supra note 17, at 79 (statements of James Orenstein) (“Some public
proceedings ‘involving the crime’ are civil in nature, and normally proceed without any participation by the executive
branch of government. Here again, the change in language from S.J.Res. 3 [106th Cong.] could be problematic: that bill
used the phrase ‘relating to the crime’ which the Senate Judiciary Committee noted would ‘typically . . . be the criminal
proceedings arising from the filed criminal charges, although other proceedings might also be related to the crime.’
Senate Report at 30-31. A court interpreting the current bill might conclude that the change from ‘relating to’ to
‘involving’ was intended to make it easier to apply the Amendment to proceedings outside the criminal context.”); see
also Senate Hearing IV, supra note 17, at 122; House Hearing IV, supra note 17, at 50.
102 S.Rept. 108-191, at 34.
103 Id. (“[T]he right applies not only to initial hearings on a case, but also rehearings, hearings at an appellate level, and
any case on a subsequent remand.”); but see S.Rept. 108-191, at 35 (“The release [that triggers a notification
requirement] must be one ‘relating to the crime.’ This includes not only a release after a criminal conviction but also,
for example, a release of a defendant found not guilty of a crime by reason of insanity and then hospitalized in custody
for further treatment, or a release pursuant to a habitual sex offender statute.”).
104 150 Cong. Rec. 7301-03 (2004) (remarks of Sens. Kyl and Feinstein) (“Public proceedings include both trial level
and appellate level court proceedings . . . . I ask Senator Feinstein, if she can comment on her understanding of section
(a)(2)?
MRS. FEINSTEIN. My understanding of this subsection is the same as the Senator’s.”).
105 Compare S.Rept. 108-191, at 33-34, and S.Rept. 106-254, at 30-1, S.Rept. 105-409, at 25-6.
106 S.Rept. 108-191, at 34; S.Rept. 106-254, at 30; S.Rept. 105-409, at 25.
107 The right to notice of hearings at which an individual has a right to be heard is a component of due process under
existing law. Nazarove v. INS, 171 F.3d 478, 482-83 (7th Cir. 1999) (“The Supreme Court has long made clear that due
process requires notice reasonably calculated to provide actual notice of the proceedings and a meaningful opportunity
to be heard. In City of West Covina v. Perkins, [525 U.S. 234, 240] (1999), the Court explained the notice requirement
in these words: A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for
a hearing is meaningful. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (‘Th[e] right to be
heard has little reality or worth unless one is informed that the matter [affecting one’s property rights] is pending and
can choose for himself whether to appear or default, acquiesce or contest.’”)).
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The Senate reports, however, explained that in rare circumstances, notice by publication might be
reasonable,108 although if judged by existing due process standards such notice might not have
been adequate in ordinary circumstances.109 Notice given after a proceeding was conducted might
have seemed unreasonable because the want of timely notice might constitute an effective
exclusion from the proceedings or might defeat the right to make a victim impact statement.110
The addition of a timeliness requirement seems to reduce the possibility of “reasonable” but
untimely notification.111 The same might be said for the new demand that notice be “accurate.” It
might seem difficult to imagine how notice could be considered either timely or reasonable, if for
want of accuracy it effectively defeated a victim’s opportunity to exercise his or her rights. One
court has suggested that the “accuracy” modification was made to ensure that victims are kept
advised of schedule changes.112
In the context of release notifications, the most vexing reasonableness questions may arise should
the right extend both to the accused and to the convicted as discussed below. In some instances,
such as the right to notification of the release of a prisoner following full service of his sentence,
Section 3771 may require notification of victims who would not previously have been entitled to
notification and whose identity and location are therefore unknown to custodial authorities.113
108 S.Rept. 106-254, at 30 (“In rare mass victim cases (i.e., those involving hundreds of victims), reasonable notice
could be provided by mean[s] tailored to those unusual circumstances, such as notification by newspaper or television
announcement.”); see also S.Rept. 105-409, at 25.
109 Small v. United States, 136 F.3d 1334, 1336 (D.C. Cir. 1998) (“‘An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances
to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314. As Mullane made clear, the Due Process Clause does
not demand actual, successful notice, but it does require a reasonable effort to give notice. ‘[P]rocess which is mere
gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might
reasonably adopt to accomplish it.’ Mullane, 339 U.S. at 315. . . . [T]he Mullane Court observed that ‘[c]hance alone
brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a
newspaper.’ Id. Almost fifty years after Mullane, in an increasingly populous and mobile nation, newspaper notices
have virtually no chance of alerting an unwary person that he must act now forever lost his rights.”).
The Senate reports noted that “reasonableness” must be judged by the circumstances of an individual case. Thus,
“[w]hile mailing a letter would be ‘reasonable’ notice of an upcoming parole release date, it would not be reasonable
notice of the escape of a dangerous prisoner bent on taking revenge on his accuser.” S.Rept. 108-191, at 35; S.Rept.
106-254, at 36; S.Rept. 105-409, at 30.
110 “For these rights to notice to be effective, notice must be sufficiently given in advance of a proceeding to give the
crime victim the opportunity to arrange his or her affairs in order to be able to attend that proceeding and any
scheduling of proceedings should take into account the victim’s schedule to facilitate effective notice.” 150 Cong. Rec.
7302 (2004) (remarks of Sen. Kyl).
111 In the view of one commentator, “‘Timely’ notice would require that the victim be informed enough in advance of a
public proceeding to be able reasonably to organize his or her affairs to attend.” Senate Hearing V, supra note 17, at
242 (statement of Steven T. Twist); see also Senate Hearing IV, supra note 17, at 183; House Hearing IV, supra note
17, at 20 (statement of Steven T. Twist).
112 United States v. Turner, 367 F. Supp. 2d 319, 332 (E.D.N.Y. 2005) (“Each of the three adjectives—‘reasonable,
accurate, and timely’—is important: ‘reasonable’ provides vital flexibility; ‘accurate’ may well impose an affirmative
obligation to advise victims of schedule changes (most states have similar statutory requirements); and ‘timely’ is
designed to be a flexible concept that ensures a victim can reasonably arrange her affairs to attend the proceeding for
which notice is given.”); see also United States v. Ingrassia, 392 F. Supp. 2d 493, 495 (E.D.N.Y. 2005) (describing an
online victim notification system as inadequate because it provided outdated scheduling information).
113 The section may apply to escapes and releases occurring after its effective date regardless of when the underlying
crime occurred; many other jurisdictions apply the right with respect to self-identifying victims of prisoners sentenced
after the effective date of the statutory provision creating or implementing the right. See, e.g., N.Y. CRIM. PRO. LAW
§ 380.50 (notice is provided by certified mail to victims who have submitted notification cards distributed to them
shortly after the defendant is sentenced).
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Application may be challenging in the area of bail as well. The section grants both a right to
consideration of the victim’s safety and a right to reasonable notice, attendance, and comment.
Under earlier circumstances, it might not be unusual for an accused to be released on
recognizance or bail before authorities could reasonably be expected to provide victims with
timely notice. It may be that the section contemplates postponement of the accused’s initial
judicial appearance until after victims can be notified and can be given a reasonable period of
time to prepare and present their views.
Early constitutional amendment proposals seemed to explicitly anticipate that a failure of timely
notice in a bail context could be rectified by recourse to the provision in the amendment that
permitted the bail decision to be revisited at the behest of a victim.114 The section contains no
such explicit provision, but nothing in the section precludes revisitation—other than abandonment
of the earlier explicit provision, perhaps.115
Release or Escape of the Accused
Section 3771 refers to notice of the release or escape of the accused. The implication is that there
is no right to notice of a release or escape following conviction, since at that point the defendant
is “convicted” rather than “accused.” If this is the section’s meaning, the consequences of the
change are considerable. The administrative burdens associated with notifying victims every time
an inmate is released from custody are not insignificant. This is especially true if the section is
construed to apply to the future release or escape of prisoners convicted of crimes committed
prior to its effective date.
Nevertheless, the committee report in the 108th Congress suggests that in the equivalent language
of the proposed constitutional amendment, the Senate Judiciary Committee considered the terms
“accused” and “convicted” interchangeable and intended no change from earlier more generously
worded proposals:
The release [that triggers a notification requirement] must be one “relating to the crime.”
This includes not only a release after a criminal conviction but also, for example, a release
of a defendant found not guilty of a crime by reason of insanity and then hospitalized in
114 Past proposals had a provision that declared: “Nothing in this article shall provide grounds to . . . reopen any
proceeding . . . except with respect to conditional release . . . . ” E.g., S.J.Res. 3 (106th Cong.). Since the amendment
has no similar prohibition on reopening at the petition of a victim, no bail exception is necessary. Of course, whether
the initial bail hearing is delayed or the accused is re-arrested following the victim’s petition to reopen, the result is the
same—an accused is detained longer than would otherwise be the case in the name of victims’ rights. S.Rept. 105-409,
at 44 (additional views of Sen. Hatch) (“This provision in particular has perhaps the greatest potential to collide with
the legitimate right of defendants. All defendants and convicts have a constitutionally protected liberty interest in
conditional release, once such release is granted. Permitting victims to move to reopen such proceedings or invalidate
such rulings, would, of course, necessitate the re-arrest and detention of released defendants and convicts, likely
implicating their liberty interest.”).
115 See Turner, 367 F. Supp. 2d at 324 (“When it became apparent that the alleged victims here had not been given
specific notice of the first two proceedings, I considered an adjournment as an alternative to further proceedings in
violation of the victim’s rights. Another alternative, and one that I concluded was preferable under the circumstances,
was to order the government to provide a written summary or transcript of the proceedings to any victim who was
denied notice and to make it clear that I would hear any victim with respect to whether the decision I made in the
victim’s absence should be reconsidered. I do not endorse this alternative as a routine substitute for conducting such
proceedings without notice to victims—the statute plainly forbids such an approach. But where, as here, the result of
the proceeding conduct in the victims’ absence is one that does not appear to jeopardize any substantive (as opposed to
procedural) right of the victim [since the defendant was detained rather than released on bail], the relief I ordered here
seemed preferable to an order that would require further incarceration of a criminal defendant without a substantive
ruling on whether there exist conditions of release that satisfy the requirements of the Bail Reform Act.”).
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custody for further treatment, or a release pursuant to a habitual sex offender statute,
S.Rept. 108-191, at 35.
Section 3771’s sponsors endorsed this view as well:
MRS. FEINSTEIN. One final point. Throughout this act, reference is made to the “accused.”
Would the Senator also agree that it is our intention to use this word in the broadest sense
to include both those charged and convicted so that the rights we establish apply throughout
the criminal justice system?
MR. KYL. Yes, that is it my understanding. 116
Moreover, the section probably cannot fairly be read to cut off the rights it promises upon the
return of a guilty verdict (when the defendant ceases to be an “accused” because of his
conviction), since it grants victims explicit rights at sentencing,117 and at parole proceedings.118
Section 3771(c)(3)’s notification right may be limited when notification would be dangerous.119
The section’s sponsors, however, urged that the limitation be invoked judiciously.120
Attendance
The right not to be excluded from any such public court proceeding, unless the court, after
receiving clear and convincing evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that proceeding. 121
Section 3771(a)(3) promises victims a limited attendance right, that is, a right not to be excluded
from public court proceedings unless attendance would color their subsequent testimony.
116 150 Cong. Rec. 7304 (2004).
117 18 U.S.C. § 3771(a)(4).
118 Id. § 3771(a)(2), (4).
119 Id. § 3771(c)(3) (“Notice of release otherwise required pursuant to this chapter shall not be given if such notice may
endanger the safety of any person.”).
120 150 Cong. Rec. 7303 (2004) (“The notice section immediately following limits the right to notice of release where
such notice may endanger the safety of the person being released. There are cases, particularly in domestic violence
cases, where there is a danger posed by an intimate partner if the intimate partner is released. Such circumstances are
not the norm, even in domestic violence cases as a category of cases. This exception should not be relied upon as an
excuse to avoid notifying most victims.”) (remarks of Sen. Kyl).
121 18 U.S.C. § 3771(a)(3). The limitations of § 3771(d)(2) apply here as well: “In a case where the court finds that the
number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a),
the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong
the proceedings.”
Rule 60(a)(2), the corresponding provision in the Federal Rules of Criminal Procedure, states: “The court must not
exclude a victim from a public court proceeding involving the crime, unless the court determines by clear and
convincing evidence that the victim’s testimony would be materially altered if the victim heard other testimony at that
proceeding. In determining whether to exclude a victim, the court must make every effort to permit the fullest
attendance possible by the victim and must consider reasonable alternatives to exclusion. The reasons for any exclusion
must be clearly stated on the record.”
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The Constitution promises the accused a public trial by an impartial jury122 and affords him the
right to be present at all critical stages of the proceedings against him. 123 It offers victims no such
prerogatives. Their status is at best that of any other member of the general public and, in fact, the
Constitution screens the accused’s right to an impartial jury trial from the over exuberance of the
public.124
Moreover, victims are even more likely to be barred from the courtroom during trial than
members of the general public. Ironically, the victim’s status as a witness, the avenue of most
likely access to pretrial proceedings, is the very attribute most likely to result in exclusion from
the trial.
Sequestration, or the practice of separating witnesses and holding outside the courtroom all but
the witness on the stand, is of ancient origins and “consists merely in preventing one prospective
witness from being taught by hearing another’s testimony.”125 The principle has been embodied in
Rule 615 of the Federal Rules of Evidence and in state rules that adopt the federal practice.126
Rule 615, however, lists among its exceptions, the fact that the witness’s presence at trial is
authorized by statute, and Section 3771(3) qualifies under that exception.127 Section 3771(a)(3)’s
attendance-right language is comparable to that found in the earlier “best efforts” statute which
recognizes the right of victims “to be present at all public court proceedings related to the offense,
unless the court determines that testimony by the victim would be materially affected if the victim
heard other testimony at trial.” 128 Section 3771 also operates in conjunction with 18 U.S.C.
122 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for
his defence.” U.S. CONST. amend. VI (emphasis added).
123 United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999) (citing United States v. Gagnon, 470 U.S. 522, 526
(1985); Faretta v. California, 422 U.S. 806, 819 n.15 (1975)).
124 Woods v. Dugger, 923 F.2d 1454, 1459-60 (11th Cir. 1991) (finding a Sixth Amendment violation in a case
involving the murder of a prison guard, marked by extensive pretrial publicity, in a community where the prison system
employed a substantial percentage of the population, and in which more than half of the members in attendance during
the course of the trial were uniformed prison guards); Norris v. Risley, 918 F.2d 828, 834 (9th Cir. 1990) (finding a
Sixth Amendment violation in a kidnaping/rape case in which women wearing “Women Against Rape” buttons
permeated the courtroom and its environs) (“We find the risk unconstitutionally great that these large and boldly
highlighted buttons tainted Norris’s right to a fair trial both by eroding the presumption of innocence and by allowing
extraneous, prejudicial considerations and cross-examination.”). Norris also noted a similar view among the state
courts: “A decision of the West Virginia Supreme Court is informative regarding the wearing of buttons during trial.
State v. Franklin, 327 S.E.2d 449 (W.Va. 1985), involved a prosecution for driving under the influence of alcohol,
resulting in death. During the trial, various spectators from an organization campaigning under the acronym MADD
(Mothers Against Drunk Driving) wore buttons inscribed with the capital letters MADD. Most jurors knew what the
initials stood for. In reversing the conviction and remanding for a new trial, the court noted that the trial court’s
‘cardinal failure . . . was to take no action whatever against a predominant group of ordinary citizens who were tooth
and nail opposed to any finding that the defendant was not guilty.’ Id. at 455.” Norris, 918 F.2d at 832.
125 VI WIGMORE ON EVIDENCE §§ 1837, 1838 (1940 ed.).
126 FED. R. EVID. 615 (“At the request of a party the court shall order witnesses excluded so that they cannot hear the
testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of
(1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as
its representative by its attorney, (3) a person whose presence is shown by a party to be essential to the presentation of
the party’s cause, or (4) a person authorized by statute to be present.”).
127 In re Mikhel, 453 F.3d 1137, 1138-39 (9th Cir. 2006); United States v. Edwards, 526 F.3d 747, 757-58 (11th Cir.
2008); United States v. Pirk, 284 F. Supp. 3d 448-50 (W.D.N.Y. 2018).
128 42 U.S.C. § 10606(b)(4) (2000 ed.), repealed by P.L. 108-405, § 102(c), 116 Stat. 2264 (2004), although still cross
referenced in 34 U.S.C. § 20141 which appeared as 42 U.S.C. § 1607 (2000 ed.) prior to its transfer to Title 34.
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§ 3510, which declares that in federal capital cases, victims who attend a trial are not disqualified
from appearing as witnesses at subsequent sentencing hearings absent a danger of unfair
prejudice, jury confusion, of the jury being misled, or as constitutionally required.129 In other
federal criminal cases, victims may be excluded from trial only as constitutionally required130 or
by operation of Section 3771(a)(3).131
Section 3771(a)(3) is more limited than the constitutional amendment proposals, which with early
exceptions afforded a general right not to be excluded.132 It was suggested that the phrase “not to
be excluded” in the amendment proposals was used to avoid the claims that the proposal would
entitle victims to transportation to relevant proceedings or to have proceedings scheduled for their
convenience or to free them from imprisonment to attend proceedings.133 In this it would be
unlike a defendant’s right to attend. Yet like a defendant’s right to attend, the use of the phrase
has been thought to permit exclusion of the victim for disruptive behavior, excessive displays of
emotion, and other forms of impropriety for which a defendant might be excluded.134
As in the case of notification, the legislative history of constitutional amendment proposals
indicates that the section plays no role in what public proceedings can be closed even though that
action denies victims’ notice, attendance, and allocution rights.135 It suggests that a victim has
little ground to object if a decision is made to close a traditionally public proceeding.
129 18 U.S.C. §§ 3510(b); 3593(c). See also United States v. McVeigh, 958 F. Supp. 512, 514-15 (D. Colo. 1997)
(permitting victims to attend trial with the observation that the court’s control over any subsequent sentencing hearing
would permit protective measures against any prejudicial impact). The McVeigh trial court barred victim-witnesses
from trial prior to the enactment of Section 3510 and the amendment of Section 3593(c). Following that initial
sequestration order, the Court of Appeals held that victim-witnesses had no standing based on 42 U.S.C. § 10606 to
seek mandamus in order to overturn the lower court’s sequestration order. United States v. McVeigh, 106 F.3d 325,
334-35 (10th Cir. 1997).
130 18 U.S.C. § 3510(a).
131 Id. § 3771(a)(3) (“A crime victim has the following right: . . . (3) The right not to be excluded from any such public
court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard other testimony as that proceeding.”) (emphasis added).
132 S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.); S.J.Res. 35 (107th Cong.); H.J.Res. 91 (107th Cong.); S.J.Res.
3 (106th Cong.); H.J.Res. 64 (106th Cong.). The exceptions mentioned occurred early on, H.J.Res. 173 (104th Cong.)
(the right “to be present at, every stage of the public proceedings, unless the court determines there is good cause for
the victim not to be present”); H.J.Res. 174 (104th Cong.) (“given the opportunity to be present at every proceeding in
which those rights are extended to the accused or convicted offender”); S.J.Res. 52 (104th Cong.) (same).
133 S.Rept. 108-191, at 35-36; S.Rept. 106-254, at 31; S.Rept. 105-409, at 26. See also 150 Cong. Rec. 7302 (2004)
(remarks of Sen. Feinstein) (“This language was drafted in a way to ensure that the government would not be
responsible for paying for the victim’s travel and lodging to a place where they could attend the proceedings.”); United
States v. Turner, 367 F. Supp. 2d 319, 332 (E.D.N.Y. 2005) (“This right effectively trumps Federal Rule of Evidence
615, and in doing so broadens a 1997 statute, 18 U.S.C. § 3510, that was enacted in response to the trial court’s
exclusion of victims from the proceedings in the Oklahoma City bombing case on the ground that they might give
victim impact testimony at a penalty phase. . . . [T]he right is phrased in the negative (i.e., the crime victim has the right
‘not to be excluded’) rather than as an affirmative right to attend. This is to guard against arguments that the
government has some affirmative duty to make it possible for indigent or incarcerated victims to be present in the
courtroom. . . . The negative phrasing also suggests that the fact that a properly notified victim cannot be present is not
in itself a circumstance that requires a proceeding to be adjourned.”); United States v. Rubin, 558 F. Supp. 2d 411, 423
(E.D.N.Y. 2008).
134 S.Rept. 108-191, at 36; S.Rept. 106-254, at 31, S.Rept. 105-409, at 26.
135 “The amendment works no change in the standards for closing hearings, but rather simply recognizes that nonpublic
hearings take place.” S.Rept. 108-191, at 34; S.Rept. 106-254, at 30; S.Rept. 105-409, at 25; see also United States v.
L.M., 425 F. Supp. 948, 957 (N.D. Iowa 2006) (deciding to close juvenile proceedings and denying a motion for victim
attendance).
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On the other hand, the section conveying the right is reinforced by a later section in which the
courts are instructed to make every effort to ensure the fullest possible victim attendance.136
Together, they require the trial attendance of victims unless the court “finds by clear and
convincing evidence that it is highly likely, not merely possible, that the victim-witness will alter
his or her testimony” if allowed to attend prior to testifying.137 At least initially, Section
3771(a)(3) apparently did not serve as a source for successful defendant objections to the
attendance of victim/witnesses in judicial proceedings.138
Participation
The right to be reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding. 139
Unlike the rights to notice and not to be excluded, the right to be heard is a right to participate.
The section describes the proceedings in which it may be invoked with greater particularity:
“public proceeding”; “in the district court”; “involving release, plea, sentencing, or [] parole.”
When the section speaks of the right to be “reasonably” heard, it seems to contemplate the
exercise of judicial control consistent with this and other rights. It is in these respects and others
very much like the amendment proposals in the 108th Congress.140
Reasonably Heard
The right to be reasonably heard raises three possible issues: (1) is it a right to comment or to
command?; (2) does the right include the right to select the method of communication—orally or
in writing?; and (3) are there limitations on the information the victim has the right to convey?
When the comment or command issue arose in connection with the proposed constitutional
amendments, the Senate Judiciary Committee reports answered that the right was not a veto but
136 18 U.S.C. § 3771(b) (“In any court proceeding involving an offense against a crime victim, the court shall ensure
that the crime victim is afforded the rights described in subsection (a). Before making a determination described in
subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall
consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any
decision denying relief under this chapter shall be clearly stated on the record.”).
137 In re Mikhel, 453 F.3d 1137, 1139 (9th Cir. 2006); United States v. Edwards, 526 F.3d 747, 757-58 (11th Cir.
2008); United States v. Pirk, 284 F. Supp. 3d 445, 449 (W.D.N.Y, 2018).
138 Edwards, 526 F.3d at 757-58; United States v. Charles, 456 F.3d 249, 257-60 (1st Cir. 2006).
139 18 U.S.C. § 3771(a)(4). Section 3771(d)(2)’s limitations apply here as well: “In a case where the court finds that the
number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a),
the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong
the proceedings.” Rule 60(a)(3), the corresponding provision in the Federal Rules of Criminal Procedure, states: “The
court must permit a victim to be reasonably heard at any public proceeding in the district court concerning release, plea,
or sentencing involving the crime.”
140 “A victim of violent crime shall have the right to . . . reasonably be heard at public release, plea, sentencing,
reprieves, and pardon proceedings.” S.J.Res. 1 (108th Cong.); H.J.Res. 48 (108th Cong.).
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an opportunity to present relevant information.141 Section 3771’s legislative history is silent on
the question, but any contrary construction would appear to have constitutional implications.142
The evolution of the “reasonably heard” language complicates the method of communication
issue. At one time, the proposed constitutional amendments spoke of a right to be “heard, if
present, and to submit a statement.”143 When the phrase “if present, and to submit a statement”
was dropped and the right defined as the right to be “reasonably heard,” one hearing witness
expressed concern that the courts would construe the new language to convey an absolute right to
make an oral statement:
I would expect courts to interpret the deletion of “submit a statement” to signal a legislative
intent to allow victims actually to be “heard” by making an oral statement. Nor do I think
the use of the term “reasonably to be heard” would alter that interpretation; instead, I
believe courts would likely reconcile the two changes by interpreting “reasonably” to mean
that a victim’s oral statement could be subjected to reasonable time and subject matter
restrictions. If the above is correct then prison officials might face an extremely
burdensome choice of either transporting incarcerated victims to court for the purpose of
being heard or providing for live transmissions to the court room.
A related problem would extend beyond prison walls. Because the difference between the
previous and current versions of the Amendment suggest[s] that a victim must be allowed
specifically to be “heard” rather than simply to “submit a statement”, a victim might
persuade a court that the “reasonable opportunity to be heard” guaranteed by the current
version of the Amendment carries with it an implicit guarantee that the government will
take affirmative steps, if necessary, to provide such a reasonable opportunity. This
undermines the intent of the Amendment’s careful use of negative phrasing with respect to
the right not to be excluded from public proceedings—a formulation designed to avoid a
government obligation to provide funding, to schedule the timing of a particular proceeding
according to a victim’s wishes, or otherwise assert affirmative effort to make it possible
for a victim to attend proceedings. 144
The Senate Committee report specifically denied that the language in the proposed amendment
was intended to create a right to transportation to the trial,145 but this very point has already been
a source of judicial division. One district court and one appellate panel believe that the right to be
reasonably heard, at least at sentencing, gives the victim the right to make an oral statement;146 at
141 S.Rept. 105-409, at 27, 28 (1998) (“Victims have no right to ‘veto’ any release decision by the court, simply to
provide relevant information that the court can consider in making its determination about release. . . . Once again, the
victim is given no right of veto over any plea. No doubt some victims may wish to see nothing less than the maximum
possible penalty (or minimum possible) for a defendant. Under the amendment, the court will receive this information,
along with that provided by prosecutions and defendants, and give it the weight it believes is appropriate in deciding
whether to accept a plea.”); S.Rept. 106-254, at 32, 33 (2000); S.Rept. 108-191, at 36, 37 (2003).
142 Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”);
North Carolina v. Pearce, 395 U.S. 711, 725 (1969) (“Due process of law, then, requires that vindictiveness against a
defendant [based on the exercise of a constitutional right] must play no part in the sentence he receives after trial.”).
143 H.J.Res. 64 (106th Cong.) (“[A] victim of a crime . . . shall have the right . . . to be heard, if present, and to submit a
statement at all such proceedings to determine a conditional release from custody, an acceptance of a negotiated plea,
or a sentence . . . .”); S.J.Res. 3 (106th Cong.).
144 House Hearing V, supra note 17, at 79 (statement of James Orenstein).
145 S.Rept. 108-191, at 38 (2003) (“The victim’s right is to be ‘heard.’ The right to make an oral statement is
conditioned on the victim’s presence in the courtroom. As discussed above, it does not confer on victims a right to have
the government transport them to the relevant proceeding.”).
146 United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345 (D. Utah 2005) (“The CVRA gives crime victims the right
to be ‘reasonably heard’ at sentencing. One possible interpretation of this phrase is that victims have a right to be heard
via a written submission to the court, such as a victim impact form. . . . Such a construction, however, would defy the
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least in a bail context, another district court believes it includes no such right and that courts may
limit the presentation to written presentations;147 and in yet a third view, an uncertain member of
the appellate panel suggests that reason may limit the right in some sentencing contexts.148
Nevertheless, it is certainly difficult to argue that the sponsors of Section 3771 believed the right
to be heard could be confined to a written statement, particularly at sentencing, in the absence of
an overwhelming number of victims:
This right of crime victims not to be excluded from the proceedings provides a foundation
for the next section, section 2, (a)(4), which provides victims the right to reasonably be
heard at any public proceeding involving release, plea, or sentencing. This provision is
intended to allow crime victims to directly address the court in person. It is not necessary
for the victim to obtain the permission of either party to do so. This right is a right
independent of the government or the defendant that allows the victim to address the court.
To the extent the victim has the right to independently address the court, the victim acts as
an independent participant in the proceedings. 149
As to the content of the victim’s communication, the legislative history is sparse. The committee
reports on the proposed amendments speak of the courts’ discretion to reasonably limit the length
and content of the victim’s communication.150 Hearing witnesses opined that the right in the
proposed amendment embodied the right “to make a recommendation regarding the appropriate
sentence to be imposed, including in capital cases.”151 The clearest statement of intent comes
from the Senate colloquy: “When a victim invokes this right during plea and sentencing
proceedings, it is intended that [] he or she be allowed to provide all three types of victim
impact—the character of the victim, the impact of the crime on the victim, the victim’s family
and the community, and sentencing recommendations.”152
Public Court Release Proceedings
Section 3771 and the amendment proposals have spoken of the right to be heard in “release”
proceedings from the beginning.153 There seems to be little dispute that the term contemplates the
intentions of the CVRA’s drafters, ignoring the fact that defendants and prosecutors make oral statements at sentencing,
and disregard the rationales underlying victim allocution. For all these reasons, the court concludes that the CVRA
gives victims the right to speak directly to the judge at sentencing.”); Kenna v. District Court, 435 F.3d 1011, 1016 (9th
Cir. 2006) (“The statements of the sponsors of the CVRA and the committee report for the proposed constitutional
amendment disclose a clear congressional intent to give crime victims the right to speak at proceedings covered by the
CVRA.”); see also United States v. Messina, 806 F. 3d 55, 65 (2d Cir. 2015) (finding no procedural error in allowing
family victims to be heard through a video presentation).
147 United States v. Marcello, 370 F. Supp. 2d 745, 750 (N.D. Ill. 2005) (“In light of the statute’s clear language, the
purpose of the detention hearing and the content of the testimony sought to be introduced in this case, I find that this
victim’s right to be reasonably heard could be satisfied through means other than an oral statement.”).
148
Kenna, 435 F.3d at 1018 (Friedman, J., dubitante) (“My concern is that the court seems to hold that a victim has an
absolute right to speak at sentencing no matter what the circumstances. . . . [I]t is not clear to me that this statute goes
that far. I would leave that issue open and issue an opinion of more limited scope.”).
149 150 Cong. Rec. 7302 (2004) (remarks of Sen. Kyl) (emphasis added).
150 S.Rept. 105-409, at 29 (1998) (“a court may set reasonable limits on the length and content of statements”); S.Rept.
106-254, at 34 (same). Note, however, that reference to content was omitted without explanation in the final report.
S.Rept. 108-191, at 38 (“[A] court may set reasonable limits on the length of statements, but should not require the
victim to submit a statement for approval before it is offered.”).
151 House Hearings V, supra note 17, at 41 (statement of Steven J. Twist); Senate Hearings V, supra note 17, at 253.
152 150 Cong. Rec. 7302 (2004) (remarks of Sen. Kyl).
153 H.J.Res. 173 (104th Cong.) (“to comment at any such proceeding involving the possible release of the defendant
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right to be heard at bail proceedings. What other proceedings, if any, the term encompasses is a
question complicated by the qualifiers with which successive proposals surrounded the releaserelated right.
Past amendment proposals once conveyed a right to be heard at public proceedings relating to a
conditional release from custody and, to the extent the inmate enjoyed a right to be heard, at
closed parole hearings.154 Later versions simply conveyed a right to be heard at public release
proceedings.155 The clear implication was that under the later proposals, victims had no right to be
heard at closed parole hearings, regardless of whether the inmate had a right to be heard.156 On
the other hand, the new formulation seemed to open a wider range of proceedings to victim
allocution.
There was always some ambiguity over whether conditional release proceedings meant
proceedings where release might be granted if certain conditions were met before release, like
acquittal at trial, or proceedings where release bound the accused or convicted offender to honor
certain conditions after release, like bail, or both. In any event, in bygone proposals the Senate
Judiciary Committee read “conditional” in the phrase “conditional release from custody,” as a
word of limitation:
The amendment extends the right to be heard to proceedings determining a “conditional
release” from custody. This phrase encompasses, for example, hearings to determine any
pretrial or post trial release (including comparable releases during or after an appeal) on
bail, personal recognizance, to the custody of a third person, or under any other conditions,
including pretrial diversion programs. Other examples of conditional release include work
release and home detention. It also includes parole hearings or their functional equivalent,
both because parole hearings have some discretion in releasing offenders and because
releases from prison are typically subject to various conditions such as continued good
behavior. It would also include a release from a secure mental facility for a criminal
defendant or one acquitted on the grounds of insanity. A victim would not have a right to
speak, by virtue of this amendment, at a hearing to determine “unconditional” release. For
example, a victim could not claim a right to be heard at a hearing to determine the
jurisdiction of the court or compliance with the governing statute of limitations, even
though a finding in favor of the defendant on these points might indirectly and ultimately
lead to the “release” of the defendant. Similarly, there is no right to be heard when a
prisoner is released after serving the statutory maximum penalty, or the full term of his
sentence. There would be a proceeding to “determine” a release in such situations and the
release would also be without condition if the court’s authority over the prisoner had
expired.157
from custody”); S.J.Res. 52 (104th Cong.) (“to be heard at any proceeding involving . . . a release from custody”).
154 S.J.Res. 3 (106th Cong.) (“A victim of a crime . . . shall have the right . . . to be heard, if present, and to submit a
statement at all such proceedings to determine a conditional release from custody . . . to the foregoing rights at as parole
proceeding that is not public, to the extent those rights are afforded to the convicted offender.”); H.J.Res. 64 (106th
Cong.).
155 S.J.Res. 1 (108th Cong.) (“A victim shall have the right . . . to be heard at public release, . . . reprieve, and pardon
proceedings . . . .”); H.J.Res. 48 (108th Cong.).
156 Cf. Senate Hearing V, supra note 17; House Hearing V, supra note 17, at 35 (statement of Steven T. Twist) (“The
right would also extend to post-conviction public release proceedings, for example parole or conditional release
hearings. Jurisdictions that have abolished parole in favor of truth in sentencing regimes may still have conditional
release. Only if the jurisdiction also has a ‘public proceeding’ prior to such a conditional release would the right
attach.”); see also Senate Hearing IV, supra note 17, at 186-87; House Hearing IV, supra note 17, at 22 (statement of
Steven T. Twist).
157 S.Rept. 106-254, at 32; S.Rept. 105-409, at 27.
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Thus, by removing the words “conditional” and “from custody,” the proposals and consequently
Section 3771 perhaps should be understood to allow victims the right to be heard on most pretrial
motions as well as most post-trial, pre-appellate petitions, or at least any that might result in a
release of the accused or the convicted offender from jeopardy. For example, it might support an
argument that the section gives victims the right be heard at trial by the trier of fact (judge or
jury) on whether the defendant should or should not be convicted on any of the charges at issue
(i.e., at least limited trial participation, although the committee report denied any such intent).158
It may seem more logical to suggest that proceedings to which the right attaches are only those
where the issue of whether the defendant should be released is squarely addressed—bail
proceedings and habeas proceedings under 28 U.S.C. § 2255—and not proceedings where the
issues addressed may be resolved in a manner that leads to the defendant’s release. Yet at least
one commentator has suggested that the right to be heard in release proceedings includes the right
to be heard upon motions to dismiss charges. The comment comes in a discussion of the changes
in the Federal Rules of Criminal Procedure appropriate to implement the section. Under one such
proposed change, the court would be required to consider the victim’s views before it ruled on a
motion to dismiss charges, a “proposed change [that] would implement a victim’s right to be
‘treated with fairness’ and to be heard at any proceeding ‘involving release’ of the defendant.”159
The same logic would appear to support a victim’s right to be heard in suppression hearings and
other pretrial motions.
Section 3771(a)(4)’s reach does not seem to extend to all proceedings, regardless of how
expansively “release” is construed. The right attaches to public proceedings. In theory, therefore,
it does not apply in grand jury proceedings or proceedings, such as those involving juveniles,
which are closed at the court’s discretion.160 The right attaches to public proceedings “in the
district court.” Section 3771(a)(4), in theory, therefore, does not apply in appellate proceedings
whether relating to bail or otherwise. Section 3771(d)(3), however, affords victims the right to
seek appellate review from a denial of their rights in the form of mandamus. Section
3771(b)(2)(a) affords them the right to be heard in habeas proceedings.
Even where the right appears to otherwise apply on its face, some courts may be reluctant to
postpone the defendant’s initial appearance or release hearings to fully accommodate the right.161
158 S.Rept. 108-191, at 38 (2003) (“The victim’s right to be heard does not extend to the guilt determination phase of
trials, although victims may, of course, be called as a witness by either party. The Committee, however, intends no
modification of the current law, with deep historical roots, allowing a crime victim’s attorney to participate in the
prosecution.”).
159 Cassell, supra note 31, at 918.
160 Cf. 150 Cong. Rec. 7302 (2004) (remarks of Sens. Kyl and Feinstein) (noting that the right to attend public court
proceedings was not intended to convey a right to attend closed proceedings such as those before the grand jury or
those closed out of concern for national security); United States v. L.M., 425 F. Supp. 948, 957 (N.D. Iowa 2006)
(deciding to close juvenile proceedings and denying motion for victim attendance).
161 United States v. Turner, 367 F. Supp. 2d 319, 336 (E.D.N.Y. 2005) (“A defendant’s initial appearance pursuant to
Fed. R. Crim. P. 5 is in a public proceeding and presumptively includes consideration of whether the accused offender
will be released. See 18 U.S.C. § 3142(a), (f). Accordingly, victims must be given reasonable, accurate, and timely
notice of the proceeding, as well as an opportunity to be heard with respect to bail. Of course, such application of the
notice requirement to the initial appearance raises an obvious practical difficulty, in that the defendant is generally
required to be brought before the magistrate judge ‘without unnecessary delay.’ Fed .R. Crim. P. 5(a)(1). The question
is whether it is either ‘necessary’ within the meaning of Rule 5 or ‘reasonable’ within the meaning of § 3771(a)(2) to
delay the initial appearance to ensure timely notice to a victim. Answering that question may well require a case-bycase inquiry into the circumstances that might indicate that an absent victim is uniquely able to address the issue of the
defendant’s release. I had no such indication in this case, and believe that the procedure I followed—proceeding
promptly with the initial appearance and (belatedly) requiring the government to notify victims of the result and of their
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Plea Bargains
Victims have a special interest in the right to be heard before the court accepts a plea agreement.
Negotiated guilty pleas account for well over 95% of the criminal convictions obtained.162 Plea
bargaining offers the Government convictions without the time, cost, or risk of a trial, and in
some cases a defendant turned cooperative witness. It offers a defendant conviction but on less
serious charges, and/or with the expectation of a less severe sentence than if he or she were
convicted following a criminal trial,163 and/or the prospect of other advantages controlled, at least
initially, by the prosecutor—agreements not to prosecute family members or friends, or to
prosecute them on less serious charges than might otherwise be filed;164 forfeiture concessions;165
testimonial immunity;166 entry into a witness protection program;167 and informant’s rewards,168
to mention a few.
For the victim, a plea bargain may come as an unpleasant surprise, one that may jeopardize the
victim’s prospects for restitution; one that may result in a sentence the victim finds insufficient;169
and/or one that changes the legal playing field so that the victim has become the principal target
of prosecution.170
Section 3771 assures crime victims of the right to reasonably be heard at proceedings when a plea
bargain is accepted. The right only attaches to the acceptance of plea bargains in open court (i.e.,
at public proceedings).171 The right clearly does not vest a victim with the right to participate in
right to request reconsideration of relevant decisions made in their absence—reasonably balances the competing
interests at stake.”).
162 ADMIN. OFF. OF THE U.S. CTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, table D-4 (2019) (only 1,663 of
the 78,767 defendants, convicted of federal crimes in the year ending in September 30, 2019, were found guilty by a
judge or jury following a criminal trial; the rest pled guilty.).
163 In addition to extraordinarily broad discretion to initiate or abandon a prosecution, see Wayte v. United States, 470
U.S. 598 (1985); Town of Newton v. Rumery, 480 U.S. 386 (1987), prosecutors play an important role in sentencing.
See, e.g., 18 U.S.C. § 3553(b) (federal court may depart from the federal sentencing guidelines upon the motion of the
prosecutor); id. § 3553(e) (federal court may sentence a defendant below an otherwise mandatory minimum term of
imprisonment upon the motion of the prosecutor).
164 E.g., Miles v. Dorsey, 61 F.3d 1459 (10th Cir. 1995); United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).
165 Cf. Libretti v. United States, 516 U.S. 29 (1995) (Government agreed to limit charges and make a favorable
sentencing recommendation in exchange for the defendant’s guilty plea and his agreement to transfer all property that
would have been subject to criminal forfeiture upon his conviction).
166 E.g., 18 U.S.C. §§ 6001-6005 (witness immunity).
167 E.g., id. § 3521 (witness relocation and protection).
168 E.g., id. § 3059 (rewards); id. § 3059A (rewards for crimes against financial institutions); id. §§ 3071-3077 (rewards
for information relating to terrorism).
169 “The victim has two interests in the plea bargain decision. One interest is financial: the victim is interested in
restitution being imposed as part of the sentence. Thus in a charge bargain, the victim wants to insure that the defendant
pleads to a charge sufficiently serious to allow restitution; and in a sentence bargain, the victim wants to advocate an
award of restitution. The victim’s second interest is retribution, or revenge: the victim feels he or she has been violated
and that the criminal’s punishment should be severe. Therefore, in a charge bargain, the victim would want the
defendant to plead guilty to a serious charge, and in a sentence bargain, the victim would want a significant sentence
imposed.” Sarah N. Walling, Victim Participation in Plea Bargains, 65 WASH. U. L. Q. 301, 307-08 (1987).
170 See David M. Posner, The Proper Standard for Self-Defense in New York: Should People v. Goetz Be Viewed as
Judicial Legislation or Judicial Restraint, 39 SYRACUSE L. REV. 845 (1988) (discussing prosecution of a subway rider
who shot the four young men he claimed attempted to rob him; the subway rider was subsequently prosecuted and
convicted for unlawful possession of a handgun).
171 The Senate committee reports, on the question of when public hearings might be closed thus removing the trigger
for the rights under earlier proposals, opined that, “while plea proceedings are generally open to the public, a court
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plea negotiations between the defendant and the prosecutor, which are neither public nor
proceedings.172 By the same token, the right to be heard is not the right to decide; victims must be
heard, but their views are not necessarily controlling.173 It remains to be seen whether the
existence of the right in open court will lead to more proceedings being closed to avoid the
complications of recognizing the right.
Sentencing
At common law, victims had no right to address the court before a sentence was imposed upon a
convicted defendant. The victim’s right to bring the crime’s impact upon him to the court’s
attention was one of the early goals of the victims’ rights efforts. The Supreme Court has
struggled with the propriety of victim impact statements in the context of capital punishment
cases, ultimately concluding that they pose no necessary infringement upon the rights of the
accused.174 In doing so, it noted:
Our holding today is limited to the [“wrongly decided”] holdings of Booth v. Maryland,
482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that evidence
and argument relating to the victim and the impact of the victim’s death on the victim’s
family are inadmissible at a capital sentencing hearing. Booth also held that the admission
of a victim’s family members’ characterizations and opinions about the crime, the
defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of
the latter sort was presented at the trial in this case. 175
The federal courts have concluded from this that in capital cases, victim impact statements are
constitutionally precluded from including “characterizations and opinions about the crime, the
defendant, and the appropriate sentence.”176 Section 3771 cannot trump a defendant’s
constitutional rights, if the two cannot be accommodated.177 Payne, however, spoke to the Eighth
Amendment considerations that apply in a capital case. Eighth Amendment limitations in a
noncapital context are not necessarily the same.178
might decide to close a proceeding in which an organized crime underling would plead guilty and agree to testify
against his bosses.” S.Rept. 108-191, at 34; S.Rept. 106-254, at 30; S.Rept. 105-409, at 25.
172 Cf. In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005) (“Nothing in CVRA requires the
Government to seek approval from crime victims before negotiating or entering into a settlement agreement.”).
173 S.Rept. 108-191, at 36 (“Victims have no right to ‘veto’ any release decision by a court, rather simply to provide
relevant information that the court can consider in making its determination about release.”); see also Senate Hearing
IV, supra note 17, at 187; House Hearing IV, supra note 17, at 22-23 (statement of Steven J. Twist) (quoting S.Rept.
106-254, at 33 (“[T]he victim is given no right of veto over any plea. No doubt, some victims may wish to see nothing
less than the maximum possible penalty (or minimum possible penalty) for a defendant. Under the amendment, the
court will receive this information, along with that provided by prosecutors and defendants, and give it the weight it
believes is appropriate deciding whether to accept a plea.”)).
174 In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court held that the Eighth Amendment did not permit the
presentation of victim impact evidence to a sentencing jury in a death penalty case; in Payne v. Tennessee, 501 U.S.
808 (1991), the Court repudiated Booth and declared that victim impact statements were not inherently suspect.
175 Payne, 501 U.S. at 830, 830 n.2.
176 Harris v. Sharp, 941 F.3d 962, 1006-07 (10th Cir. 2019); see also United States v. Brown, 441 F.3d 1330, 1351
(11th Cir. 2006); Humphries v. Ozmint, 397 F.3d 206, 217 (4h Cir. 2005); United States v. Bernard, 299 F.3d 467, 480
(5th Cir. 2002); Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999).
177 See United States v. Yamashiro, 788 F.3d 1231, 1234-36 (9th Cir. 2015) (remanding for resentencing when the trial
court, for the convenience of victims, had allowed them to present impact statements even though defense counsel had
not arrived).
178 United States v. Horsfall, 552 F.3d 1275, 1284 (11th Cir. 2008) (“However, Horsfall cites no authority establishing
that this lines of cases [i.e., Payne, Booth, et al.] dealing with the presentation of victim impact evidence to a capital
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In non-capital cases, as noted earlier, the sponsors of the legislation seem to have anticipated that
the participation right included the right to be heard orally, except perhaps when a court faced an
overwhelming number of victims at the sentencing of a single defendant in which case recourse
to Section 3771(d)(2) might be appropriate.179 Thus far, the courts seem to concur.180 The right to
be heard at sentencing does not include the right to have the victim’s impact statement included in
the presentence report as long as the statement is presented and considered by the court.181 Nor
does it include a right to disclose the content of the presentence report.182
Parole and Pardon
Section 3771 gives victims the right to be heard at parole proceedings. As noted earlier, parole is
not part of the federal criminal justice process relating to any crime committed after November 1,
1987; the same is true of felonies committed in violation of the laws of the District of Columbia
after August 5, 2000.183 The parole laws in effect prior to those dates continue to apply with
respect to federal offenses committed before November 1, 1987, and to felonies under the laws of
the District of Columbia committed before August 5, 2000. Sections 3771(a)(2) and (a)(4),
nevertheless, entitle victims to notification of and an opportunity to be heard at any parole hearing
conducted for pre-abolition offenders.
The constitutional amendment proposals in the 108th Congress provided victims with a right to
be heard at public pardons proceedings. Section 3771 has no such provision. The right to be
reasonably heard applies to public court proceedings. The Constitution vests the pardoning power
in the President,184 and the power is exercised through an administrative process that does not
involve public court proceedings.185 Section 3771(a)(2) entitles victims to notice of the release of
the prisoner pursuant to the President’s pardoning power.
sentencing jury, applies to federal judge-based sentencing in the non-capital child pornography context.”); United
States v. Eberhard, 525 F.3d 175, 178 (2d Cir. 2008) (“Eberhard contends in passing that allowing victims to address
the court at sentencing ‘has Eighth Amendment implications.’ Eberhard invokes the Supreme Court’s now-overturned
prohibition on victim-impact evidence, but elides the fact that the prohibition was limited to death penalty cases.”).
179 18 U.S.C. § 3771(d)(2) (“In a case where the court finds that the number of crime victims makes it impracticable to
accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to
give effect to the chapter that does not unruly complicate or prolong the proceedings.”).
180 United States v. Degenhardt, 405 F. Supp. 2d 1341, 1345 (D. Utah 2005) (“[T]he CVRA gives crime victims the
right to be ‘reasonably heard’ at sentencing. One possible interpretation of this phrase is that victims have a right to be
heard via a written submission to the court, such as a victim impact form. . . . Such a construction, however, would defy
the intentions of the CVRA’s drafters, ignoring the fact that defendants and prosecutors make oral statements at
sentencing, and disregard the rationales underlying victim allocution. For all these reasons, the court concludes that the
CVRA gives victims the right to speak directly to the judge at sentencing.”); Kenna v. District Court, 435 F.3d 1011,
1016 (9th Cir. 2006) (“The statements of the sponsors of the CVRA and the committee report for the proposed
constitutional amendment disclose a clear congressional intent to give crime victims the right to speak at proceedings
covered by the CVRA.”); but see id. at 1018 (Friedman, J., dubitante) (“My concern is that the court seems to hold that
a victim has an absolute right to speak at sentencing no matter what the circumstances. . . . [I]t is not clear to me that
this statute goes that far. I would leave that issue open and issue an opinion of more limited scope.”).
181 United States v. Burkholder, 590 F.3d 1071, 1074-76 (9th Cir. 2010).
182 In re Siler, 571 F.3d 604, 609-10 (6th Cir. 2009).
183 Congress abolished parole for those convicted of federal crimes committed after November 1, 1987, P.L. 98-473, 98
Stat. 2027 (1984), and provided for the District of Columbia to do so in P.L. 105-33, § 11212, 111 Stat. 741 (1997).
184 U.S. CONST. art. II, § 2, cl. 1.
185 28 C.F.R. §§ 0.35, 0.36.
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For federal crimes committed after November 1, 1987 (after August 5, 2000 for D.C. offenses),
Congress replaced parole with supervised release, a term of supervision after release from prison
that courts impose initially at the time of sentencing.186 As noted elsewhere, victims have a right
to be reasonably heard at sentencing.187
Confer
The reasonable right to confer with the attorney for the Government in the case. 188
This is a right not found in the constitutional amendment proposals. The statute might be read to
afford a right to confer beginning with the commission of the offense, including with regard to the
manner in which the investigation is conducted and the decision as to what charges to bring and
against whom. The Senate sponsors of the section, however, described an extensive but more
limited right:
Section 2, (a)(5) provides a right to confer with the attorney for the Government in the case.
This right 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. The right,
however, is not limited to these examples. I ask the Senator if he concurs in this intent.
MR. KYL. Yes. The intent of this section is just as the Senator says. This right to confer
does not give the crime victim any right to direct the prosecution. Prosecutors should
consider it part of their profession to be available to consult with crime victims about the
concerns the victims may have which are pertinent to the case, case proceedings or
dispositions. Under this provision, victims are able to confer with the Government’s
attorney about proceedings after charging.189
Initially, at least some courts appeared to believe that the exercise of the right must be selfinitiated.190 The obligation, however, rests with the government, and the courts are bound to
ensure that it is honored.191 Even before Congress made application more explicit, case law
186 18 U.S.C. § 3583; see generally CRS Rept. CRS Report RL31653, Supervised Release (Parole): An Overview of
Federal Law, by Charles Doyle.
187 18 U.S.C. § 3771(a)(4); United Sates v. Ramos, 979 F.3d 994, 1002 (2d Cir. 2020) (“But while Ramos argues that
the victim statements were ‘excessive’ . . . and inappropriately influenced the district court’s decision, it cannot be said
that the district court abused its discretion simply by permitting these victims to share how Ramos’s actions impacted
their lives. For one thing, the Crime Victims’ Right Act expressly guarantees the right of victims . . . to be reasonably
heard . . . .”); United States v. Diggles, 957 F.3d 551, 558 n.3 (5th Cir. 2020) (“In-court pronouncement of
discretionary conditions [of supervised release] does not just allow defendant an opportunity to opine on the propriety
and scope of a condition. The requirement furthers a victim’s right ‘to be reasonably heard’ about what conditions
would help protect them. 18 U.S.C. § 3771(a)(4); see also. FED. R. CRIM. 32(i)(4)(B).”); United States v. GierboliniRivera, 900 F.3d 7, 14 n.8 (1st Cir. 2018) (“We also reject Gierbolini’s contention that the district court was
‘influenced by the presence of the victim in court and the unwarranted intervention of his lawyer.’ Who despite
acknowledging that he did not ‘have a right to intervene in the matter’ as a ‘criminal matter,’ nevertheless addressed the
court. Contrary to Gierbolini’s contentions, pursuant to 18 U.S.C. § 3771(a)(4), the victim had the right not only to
attend the public proceeding, but also to be ‘reasonably heard.’”).
188 18 U.S.C. § 3771(a)(5). Rule 60 (victim’s rights) of the Federal Rules of Criminal Procedure has no corresponding
provision.
189 150 Cong. Rec. 7302 (2004) (remarks of Sens. Feinstein and Kyl) (emphasis added).
190 In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005) (“[N]o petitioner has alleged that it asked the
Government to confer with it and was denied the opportunity to do so.”). It appears that the Government satisfies its
obligation by conferring with the victim’s attorney. Cf. Jordan v. Dep’t of Justice, 173 F. Supp. 3d 44, 52 n.6 (S.D.N.Y.
2016).
191 18 U.S.C. § 3771(c)(1), (b); In re Dean, 527 F.3d 391 (5th Cir. 2008) (“In p
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