(a) In General.
(1) Notice of a Proceeding. The government must use its best efforts to give the victim reasonable, accurate, and timely notice of any public court proceeding involving the crime.
(2) Attending the Proceeding. 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.
(3) Right to Be Heard on Release, a Plea, or Sentencing. 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.
(b) Enforcement and Limitations.
(1) Time for Deciding a Motion. The court must promptly decide any motion asserting a victim's rights described in these rules.
(2) Who May Assert the Rights. A victim's rights described in these rules may be asserted by the victim, the victim's lawful representative, the attorney for the government, or any other person as authorized by 18 U.S.C. §3771(d) and (e).
(3) Multiple Victims. If the court finds that the number of victims makes it impracticable to accord all of them their rights described in these rules, the court must fashion a reasonable procedure that gives effect to these rights without unduly complicating or prolonging the proceedings.
(4) Where Rights May Be Asserted. A victim's rights described in these rules must be asserted in the district where a defendant is being prosecuted for the crime.
(5) Limitations on Relief. A victim may move to reopen a plea or sentence only if:
(A) the victim asked to be heard before or during the proceeding at issue, and the request was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 10 days after the denial, and the writ is granted; and
(C) in the case of a plea, the accused has not pleaded to the highest offense charged.
(6) No New Trial. A failure to afford a victim any right described in these rules is not grounds for a new trial.
(Added Apr. 23, 2008, eff. Dec. 1, 2008.)
Committee Notes on Rules—2008
This rule implements several provisions of the Crime Victims’ Rights Act, codified at 18 U.S.C. §3771, in judicial proceedings in the federal courts.
Subdivision (a)(1). This subdivision incorporates 18 U.S.C. §3771(a)(2), which provides that a victim has a “right to reasonable, accurate, and timely notice of any public court proceeding. . . .” The enactment of 18 U.S.C. §3771(a)(2) supplemented an existing statutory requirement that all federal departments and agencies engaged in the detection, investigation, and prosecution of crime identify victims at the earliest possible time and inform those victims of various rights, including the right to notice of the status of the investigation, the arrest of a suspect, the filing of charges against a suspect, and the scheduling of judicial proceedings. See 42 U.S.C. §10607(b) & (c)(3)(A)–(D).
Subdivision (a)(2). This subdivision incorporates 18 U.S.C. §3771(a)(3), which provides that the victim shall not be excluded from public court proceedings unless the court finds by clear and convincing evidence that the victim's testimony would be materially altered by attending and hearing other testimony at the proceeding, and 18 U.S.C. §3771(b), which provides that the court shall make every effort to permit the fullest possible attendance by the victim.
Rule 615 of the Federal Rules of Evidence addresses the sequestration of witnesses. Although Rule 615 requires the court upon the request of a party to order the witnesses to be excluded so they cannot hear the testimony of other witnesses, it contains an exception for “a person authorized by statute to be present.” Accordingly, there is no conflict between Rule 615 and this rule, which implements the provisions of the Crime Victims’ Rights Act.
Subdivision (a)(3). This subdivision incorporates 18 U.S.C. §3771(a)(4), which provides that a victim has the “right to be reasonably heard at any public proceeding in the district court involving release, plea, [or] sentencing. . . .”
Subdivision (b). This subdivision incorporates the provisions of 18 U.S.C. §3771(d)(1), (2), (3), and (5). The statute provides that the victim, the victim's lawful representative, and the attorney for the government, and any other person as authorized by 18 U.S.C. §377l(d) and (e) may assert the victim's rights. In referring to the victim and the victim's lawful representative, the committee intends to include counsel. 18 U.S.C. §3771(e) makes provision for the rights of victims who are incompetent, incapacitated, or deceased, and 18 U.S.C. §3771(d)(1) provides that “[a] person accused of the crime may not obtain any form of relief under this chapter.”
The statute provides that those rights are to be asserted in the district court where the defendant is being prosecuted (or if no prosecution is underway, in the district where the crime occurred). Where there are too many victims to accord each the rights provided by the statute, the district court is given the authority to fashion a reasonable procedure to give effect to the rights without unduly complicating or prolonging the proceedings.
Finally, the statute and the rule make it clear that failure to provide relief under the rule never provides a basis for a new trial. Failure to afford the rights provided by the statute and implementing rules may provide a basis for re-opening a plea or a sentence, but only if the victim can establish all of the following: the victim asserted the right before or during the proceeding, the right was denied, the victim petitioned for mandamus within 10 days as provided by 18 U.S.C. §3771(d)(5)(B), and—in the case of a plea—the defendant did not plead guilty to the highest offense charged.
Changes Made to Proposed Amendment Released for Public Comment. Subdivision (a)(2) was revised to make it clear that the duty to permit fullest attendance arises in the context of the victim's possible exclusion.
Subdivision(b)(2) was revised to respond to concerns that the amendments did not clearly state that the victim's lawful representative could assert the victim's rights. The Committee Note makes it clear that a victim or the lawful representative of a victim may generally participate through counsel, and provides that any other person authorized by 18 U.S.C. §3771(d) and (e) may assert the victim's rights, such as persons authorized to raise the rights of victims who are minors or are incompetent.
References throughout subdivision (b) were revised to indicate that they were applicable to the victim's rights described in the Federal Rules of Criminal Procedure, not merely subdivision (a) of Rule 60.
Other minor changes were made at the suggestion of the Style Consultant to improve clarity.
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