Journal of Criminal Law and Criminology
Volume 104 | Issue 1 Article 2
Winter 2014
Crime Victims' Rights During Criminal
Investigations? Applying the Crime Victims' Rights
Act Before Criminal Charges Are Filed
Paul G. Cassell
Nathanael J. Mitchell
Bradley J. Edwards
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Victims' Rights Act Before Criminal Charges Are Filed, 104 J. Crim. L. & Criminology 59 ().
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THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 104, No. 1
Copyright © 2014 by Northwestern University School of Law
Printed in U.S.A.
CRIME VICTIMS’ RIGHTS DURING
CRIMINAL INVESTIGATIONS?
APPLYING THE CRIME VICTIMS’ RIGHTS
ACT BEFORE CRIMINAL CHARGES ARE
FILED
PAUL G. CASSELL*
NATHANAEL J. MITCHELL**&
BRADLEY J. EDWARDS***
This Article addresses whether crime victims should have rights during
criminal investigations, using the Crime Victims’ Rights Act (CVRA) as the
focal point for our discussion. This is a critical issue, as many criminal
cases may never proceed to formal charging. If crime victims have no
rights during criminal investigations, then many crime victims will never
have any rights at all.
The issue of whether crime victims have rights in the criminal justice
process recently came to a head when the Justice Department released a
memorandum contending that the CVRA does not extend crime victims any
rights until prosecutors choose to file formal criminal charges. This led the
CVRA’s Senate cosponsor, then-Senator Jon Kyl, to fire off an angry letter
to the Justice Department attacking its position. In our Article, we side
with the Act’s cosponsor. We believe that, properly understood, the CVRA
does extend crime victims’ rights during criminal investigations.
Our Article proceeds in four parts. First, it highlights the importance
of applying the Act before the formal filing of charges by illustrating how
dozens of victims in a notorious federal sex abuse case were deprived of the
* Ronald N. Boyce Presidential Professor of Criminal Law, S.J. Quinney College of Law
at the University of Utah.
** Associate, Snow, Christensen & Martineau (Salt Lake City, Utah).
*** Partner, Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman (Fort Lauderdale,
Fla.). The authors thank Douglas Beloof, Patricia Cassell, Meg Garvin, Jay Howell, James
Marsh, and Stephen Twist for their assistance with this Article.
59
60 CASSELL ET AL. [Vol. 104
ability to participate meaningfully in the criminal process when federal
prosecutors narrowly interpreted their responsibilities under the Act.
Second, the Article reviews the purpose, text, structure, and history of the
CVRA, concluding that they all support the conclusion that crime victims
have rights during criminal investigations. Third, our Article critiques the
Department’s memorandum, demonstrating that the Department’s analysis
is unpersuasive. Fourth and finally, the Article provides a specific
approach for determining when rights should attach—specifically when
federal law enforcement agencies have identified a crime with sufficient
precision to send a “target” letter to a criminal defendant. We also
observe that federal and state prosecutors have already accorded rights to
victims before formally filing charges, which further undermines the
Department’s overly narrow construction of the Act.
TABLE OF CONTENTS
INTRODUCTION ............................................................................................ 61
I. THE ISSUE OF RIGHTS FOR CRIME VICTIMS DURING CRIMINAL
INVESTIGATIONS .............................................................................. 63
A. A Brief History of Crime Victims’ Rights .................................. 63
B. The Crime Victims’ Rights Act ................................................... 65
C. An Illustration of the Pre-charging Issue: The Jeffrey Epstein
Case ........................................................................................... 67
II. THE CVRA’S APPLICATION BEFORE FORMAL CHARGES ARE FILED ..... 69
A. The CVRA’s Purposes ................................................................ 70
B. The CVRA’s Plain Language ...................................................... 71
C. Courts Recognize That Crime Victims Have CVRA Rights
Before Charging ........................................................................ 73
III. THE JUSTICE DEPARTMENT’S UNPERSUASIVE POSITION ...................... 75
A. OLC’s Misreading of the CVRA’s Definition of “Victim” ........ 76
B. OLC’s Distortion of the CVRA’s Structure and Legislative
History ...................................................................................... 80
C. OLC’s Ineffective Response to the CVRA’s Coverage and
Venue Provisions ...................................................................... 86
IV. WHEN PRE-CHARGING RIGHTS ATTACH UNDER THE CVRA ............... 90
A. A Test for Determining When Rights Attach .............................. 91
B. Applying the Test to the Epstein Case ......................................... 93
C. Current Department Policy on Pre-charging Rights .................... 94
D. State Law Extension of Pre-charging Rights .............................. 97
CONCLUSION ............................................................................................. 103
2014] CRIME VICTIMS’ RIGHTS 61
INTRODUCTION
In recent years, federal and state enactments have given crime victims
extensive rights to participate in criminal cases. Many of these rights apply
only after the filing of criminal charges, such as the victim’s right to be
heard during court proceedings. A crime victim’s right to deliver an impact
statement at sentencing, for instance, can only be exercised after a
prosecutor has filed charges against a defendant and obtained a conviction.
Other rights, however, can apply even before the formal filing of charges.
As one example, the Crime Victims’ Rights Act (CVRA) 1 extends to
federal crime victims the right to “confer” with prosecutors. But can
victims exercise this right before charges have been filed?
This question has tremendous practical importance. In many cases,
prosecutors negotiate pleas well before any charges are ever drafted. If
crime victims’ rights enactments do not extend rights to victims until the
formal filing of charges, then crime victims can be effectively excluded
from the plea bargaining process. Yet the exclusion of victims in early
stages of a criminal case affects more than just the content of a plea deal.
Crime victims will also lose other important rights in the process if the
formal filing of charges is the necessary trigger for those rights. If, for
example, prosecutors work out a nonprosecution agreement with an
offender, they need not notify his victims of what they are doing or of the
fact that potential charges will never be filed.
The issue of pre-charging rights has most prominently surfaced in
connection with federal cases. In 2010, the Department of Justice’s Office
of Legal Counsel (OLC) weighed in on the issue and released a legal
opinion arguing that victims of federal crimes have no CVRA rights during
a federal criminal investigation. 2 The Justice Department took the position
that rights under the CVRA do not apply until prosecutors formally initiate
criminal proceedings by filing a complaint, information, or indictment. The
Department claims to find support for that limiting interpretation of the
statute in its plain language and legislative history.
Shortly after the Department released its opinion, one of the CVRA’s
congressional sponsors, then-Senator Jon Kyl, sent a letter to Attorney
General Eric Holder strenuously objecting to the Department’s conclusions.
Senator Kyl directly stated his view that “[w]hen Congress enacted the
1 Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn
Crime Victims’ Rights Act, Pub. L. No. 108-405, 118 Stat. 2260, 2261–65 (2004) (codified
as amended at 18 U.S.C. § 3771 (2012) and 42 U.S.C. § 10603(d)–(e) (2006)).
2 The Availability of Crime Victims’ Rights Under the Crime Victims’ Rights Act of
2004, 35 Op. O.L.C. 1 (Dec. 17, 2010) [hereinafter OLC CVRA Rights Memo], available at
http://goo.gl/fHmCL4.
62 CASSELL ET AL. [Vol. 104
CVRA, it intended to protect crime victims throughout the criminal justice
process—from the investigative phases to the final conclusion of a case.” 3
Senator Kyl contested the Department’s analysis of the statute and, in
particular, its use of statements from him during Congress’s consideration
of the CVRA.
This Article sides with the CVRA’s cosponsor and concludes that
crime victims’ CVRA rights attach before formal charging. Both the
CVRA’s plain language and its legislative history lead inexorably to this
conclusion, as every court that has considered this issue has concluded.
This Article also contends that, as a matter of sound public policy, crime
victims should have rights before the formal filing of criminal charges.
This Article proceeds in four parts. Part I frames the issues under
discussion by defending the importance of extending rights to crime victims
during criminal investigations. Part I also provides background on victims’
rights and gives a concrete illustration of a case in which the question of
pre-charging rights for crime victims has arisen—specifically, the Jeffrey
Epstein sex abuse case before a federal court in Florida. In that case, girls
victimized by Epstein have argued that they should have been consulted
about a federal nonprosecution agreement; Department attorneys have
responded that because prosecutors never filed charges, government
officials had no formal obligations to inform the girls.
Part II reviews the CVRA’s purpose, text, structure, and legislative
history. This review establishes that the CVRA extends rights to crime
victims before formal charges are filed.
Part III critiques OLC’s position that the CVRA extends rights to
victims only after prosecutors have lodged charges in court. The
Department’s proffered arguments do not withstand close scrutiny,
particularly in light of the fact that the CVRA covers federal agencies
involved in the “detection” and “investigation” of crime, 4 and specifically
authorizes crime victims to file CVRA motions in situations where “no
prosecution is underway.” 5
Part IV then proposes a specific approach for determining when crime
victims’ CVRA rights attach. This Part explains that the rights should
attach when federal law enforcement or prosecuting agencies have
identified a federal crime and a particular victim with sufficient precision
that they would send a “target” letter to a criminal defendant in similar
circumstances. If prosecutors have sufficient information to provide notice
3 Letter from Jon Kyl, U.S. Sen., to Eric H. Holder, Jr., Att’y Gen. (June 6, 2011),
reprinted in 157 CONG. REC. S3608 (daily ed. June 8, 2011) (statement of Sen. Jon Kyl).
4 18 U.S.C. § 3771(c)(1).
5 Id. § 3771(d)(3).
2014] CRIME VICTIMS’ RIGHTS 63
to a potential criminal of his rights, they can do the same for his victims.
This Part also notes that the Department of Justice and state prosecutors
already successfully provide rights to victims before charging. This
successful experience strongly suggests that providing rights to victims
early in the criminal justice process will not be unduly burdensome.
I. THE ISSUE OF RIGHTS FOR CRIME VICTIMS DURING CRIMINAL
INVESTIGATIONS
To consider the question of whether victims should have rights during
criminal investigations, some understanding of the underlying purposes of
victims’ rights enactments will be useful. These enactments are typically
designed to make victims participants in all phases of the criminal justice
process. 6 Congress drafted the CVRA, for example, broadly to make crime
victims participants in criminal cases. The Jeffrey Epstein sex abuse case
demonstrates the importance of victim participation even before charges are
filed.
A. A BRIEF HISTORY OF CRIME VICTIMS’ RIGHTS
The crime victims’ rights movement has sought to make crime victims
important participants in the criminal justice process. The movement began
in the wake of the Warren Court revolution, which extended new rights to
criminal defendants. 7 With the courts paying increasing attention to
criminal defendants, crime victims’ advocates began to argue that the
victims themselves had been overlooked. 8 The movement gained great
visibility in the early 1980s when President Ronald Reagan appointed the
President’s Task Force on Victims of Crime. 9 The Task Force published a
report concluding that “the criminal justice system has lost an essential
balance. . . . The victims of crime have been transformed into a group
oppressively burdened by a system designed to protect them. This
oppression must be redressed.” 10
The Task Force chronicled how crime victims were treated in all
stages of the criminal justice process, from the police investigation through
6 See DOUGLAS E. BELOOF, PAUL G. CASSELL & STEVEN J. TWIST, VICTIMS IN CRIMINAL
PROCEDURE 3–39 (3d ed. 2010) (describing reforms from a historical perspective); see also,
e.g., 18 U.S.C. § 3771(a) (2012).
7 See BELOOF, CASSELL & TWIST, supra note 6, at 3–39 (describing the history of
victims’ rights in American law and the early days of the modern movement).
8 See, e.g., William F. McDonald, Towards a Bicentennial Revolution in Criminal
Justice: The Return of the Victim, 13 AM. CRIM L. REV. 649, 651–55 (1976).
9 Exec. Order 12,360, 47 Fed. Reg. 17,975 (Apr. 27, 1982); see also PRESIDENT’S TASK
FORCE ON VICTIMS OF CRIME, FINAL REPORT, at ii (1982).
10 PRESIDENT’S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT, supra note 9, at 114.
64 CASSELL ET AL. [Vol. 104
court proceedings, and ultimately to any parole or other release of the
criminal. The Task Force then made a series of recommendations for all
criminal justice agencies, including the police, prosecutors, and the courts. 11
The recommendations were designed to allow crime victims to receive
information about, and to participate in, criminal cases.
In its most far-reaching recommendation, the Task Force proposed
amending the U.S. Constitution to protect victims’ rights. 12 The proposed
amendment would have built on existing constitutional rights for criminal
defendants by extending similar rights to crime victims. 13
After the publication of the report, crime victims’ advocates secured
the passage of a series of state constitutional and legislative reforms. These
measures guaranteed victims’ rights in the criminal process, such as the
right to be notified of court proceedings, to attend those proceedings, and to
speak at appropriate points in the process, such as plea bargaining and
sentencing. The measures were embodied in state statutes and, in more
than thirty states, state constitutional “bills of rights” for crime victims. 14
While many of the measures had narrow participatory rights, 15 some of the
amendments also contained more open-ended language, promising victims
a right to fair treatment “throughout the criminal justice process.” 16
After successfully passing many state constitutional amendments,
crime victims’ rights advocates sought to achieve the Task Force’s broadest
recommendation: to secure protection for victims’ rights in the U.S.
Constitution. In 1996, victims’ advocates proposed a Victims’ Rights
Amendment in a Rose Garden ceremony attended by President Bill
Clinton. 17 The proposed amendment contained a list of rights for crime
victims, largely paralleling the rights contained in state victims’ rights
11 See id. at 56–82.
12 Id. at 114.
13 Id. at 114–15.
14 For a map depicting the states with (and without) such amendments, see State Victim
Rights Amendments, NAT’L VICTIMS’ CONSTITUTIONAL AMENDMENT PASSAGE,
http://goo.gl/znI4YW (last visited Nov. 26, 2013); for discussion, see infra Part IV.D
(discussing legislative reforms in a number of states).
15 See, e.g., CAL. CONST. art. I, § 28; MICH. CONST. art. I, § 24; N.C. CONST. art. I, § 37.
For a detailed discussion of how one state constitutional amendment is intended to operate,
see generally Paul G. Cassell, Balancing the Scales of Justice: The Case for and the Effects
of Utah’s Victims’ Rights Amendment, 1994 UTAH L. REV. 1373.
16 E.g., ARIZ. CONST. art. II, § 2.1(A)(1); MICH. CONST. art. I, § 24(1); TEX. CONST. art. I,
§ 30(a)(1); see CAL. CONST. art. I, § 28(b)(1) (“throughout the criminal or juvenile justice process”).
17 John M. Broder, Clinton Calls for Victims’ Rights in Constitution, L.A. TIMES, June
26, 1996, at A1. For detailed discussions of the legislative efforts, see 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, 847–50.
2014] CRIME VICTIMS’ RIGHTS 65
amendments. 18 Congress considered the amendment several times, but it
never obtained the requisite two-thirds support in both houses to secure the
Amendment’s approval. 19 Critics quarreled not so much with the goals of
the amendment but rather with the necessity of constitutionalizing such
rights. 20
B. THE CRIME VICTIMS’ RIGHTS ACT
Unable to obtain the necessary supermajority to pass a federal
constitutional amendment, in April 2004, crime victims’ rights advocates
decided to focus on federal legislation protecting crime victims. In
exchange for backing off from their efforts to pass a constitutional
amendment, crime victims’ advocates received near-universal congressional
support for a “broad and encompassing” statutory victims’ bill of rights. 21
Victims’ advocates sought to expand on the protections found in other
previously-enacted victims’ rights statutes, including, notably, the Victims’
Rights and Restitution Act of 1990. 22 That statute had also included a bill
of rights for crime victims, yet because of limited enforcement mechanisms,
crime victims had been unable to secure court protection of the rights listed
in the statute. 23
The statute that Congress passed to solve these problems—the Crime
Victims’ Rights Act of 2004—gave victims “the right to participate in the
18 See Cassell, supra note 17, at 848–49. For the pros and cons of the amendment as
originally introduced, compare Paul G. Cassell, Barbarians at the Gates? A Reply to the
Critics of the Victims’ Rights Amendment, 1999 UTAH L. REV. 479 [hereinafter Cassell,
Barbarians at the Gates?], and Steven J. Twist, The Crime Victims’ Rights Amendment and
Two Good and Perfect Things, 1999 UTAH L. REV. 369, with Robert P. Mosteller, The
Unnecessary Victims’ Rights Amendment, 1999 UTAH L. REV. 443. For a more recent
discussion of a newer version of the amendment, see Paul G. Cassell, The Victims’ Rights
Amendment: A Sympathetic, Clause-by-Clause Analysis, 5 PHOENIX L. REV. 301 (2012).
19 Hon. Jon Kyl et al., On the Wings of Their Angels: The Scott Campbell, Stephanie
Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act, 9 LEWIS &
CLARK L. REV. 581, 588–91 (2005).
20 Proposed Constitutional Amendment to Protect Crime Victims, S.J. Res. 1: Hearing
Before the S. Comm. on the Judiciary, 108th Cong. 128–29 (2003) (statement of Sen. Patrick
Leahy); see also Steven J. Twist & Daniel Seiden, The Proposed Victims’ Rights
Amendment: A Brief Point/Counterpoint, 5 PHOENIX L. REV. 341, 356, 378 (2012)
(illustrating that the necessity dispute has endured to the present day).
21 150 CONG. REC. 7295 (2004) (statement of Sen. Dianne Feinstein); see also Kyl et al.,
supra note 19, at 591–93.
22 Victims’ Rights and Restitution Act of 1990, Pub. L. No. 101-647, 104 Stat. 4820
(codified as amended at 42 U.S.C. §§ 10601, 10606–07 (2006)).
23 See, e.g., United States v. McVeigh, 106 F.3d 325, 328 (10th Cir. 1997) (per curiam)
(refusing to enforce a victim’s right to attend a trial); Cassell, Barbarians at the Gates?,
supra note 18, at 515–22 (discussing McVeigh).
66 CASSELL ET AL. [Vol. 104
system.” 24 It extended broad rights to crime victims, including “[t]he right
to be treated with fairness and with respect for the victim’s dignity and
privacy” 25 and “[t]he reasonable right to confer with the attorney for the
Government in the case.” 26 It also commanded that these rights must be
afforded by the Justice Department “and other departments and agencies of
the United States engaged in the detection, investigation, or prosecution of
crime.” 27 The CVRA also contained specific enforcement mechanisms.
The Act provided that rights can be “assert[ed]” by “[t]he crime victim or
the crime victim’s lawful representative, and the attorney for the
Government . . . .” 28 The courts were also required under the Act to “ensure
that the crime victim is afforded the rights” given by the law. 29
Congress appeared to have at least two goals in mind in passing the
CVRA. The first was simply to ensure that crime victims understood what
was happening in the criminal justice process. This goal is apparent from
the fact that the CVRA gives crime victims rights to notification about
various court hearings, as well as more general rights to confer with
prosecutors and to be treated with fairness. 30 The CVRA’s Senate sponsors
explained:
In case after case we found victims, and their families, were ignored, cast aside, and
treated as non-participants in a critical event in their lives. They were kept in the dark
by prosecutors to[o] busy to care enough, by judges focused on [defendants’] rights,
and by a court system that simply did not have a place for them. 31
In passing the CVRA, Congress sought to change the system’s
obliviousness to crime victims that often “left crime victims and their
families victimized yet again.” 32
A second overarching purpose of the CVRA was to allow crime
victims to play a role in the criminal justice process. Through the CVRA,
Congress intended to make victims “independent participant[s]” in the
criminal justice process. 33 The CVRA extends to crime victims a series of
“rights” in the criminal justice process—rights that the victims have
24 150 CONG. REC. 7297; see 18 U.S.C. § 3771 (2012). For a description of victim
participation, see BELOOF, CASSELL & TWIST, supra note 6, at 728–33.
25 18 U.S.C. § 3771(a)(8).
26 Id. § 3771(a)(5).
27 Id. § 3771(c)(1).
28 Id. § 3771(d)(1).
29 Id. § 3771(b)(1).
30 See id. § 3771(a).
31 150 CONG. REC. 7296 (2004) (statement of Sen. Dianne Feinstein).
32 Id.
33 Id. at 7302 (statement of Sen. Jon Kyl).
2014] CRIME VICTIMS’ RIGHTS 67
independent standing to assert. 34 Congress viewed these provisions as
establishing a victim’s right “to participate in the process where the
information that [victims] and their families can provide may be material
and relevant . . . .” 35
Congress appears to have had both intrinsic and instrumental reasons
for wanting crime victim participation. Congress clearly thought that such
participation was valuable in its own right. Senator Kyl embodied this
belief and explained his decision to become involved in the crime victims’
rights movement because of his discovery that victims:
were suffering through the trauma of the victimization and then being thrown into a
system which they did not understand, which nobody was helping them with, and
which literally prevented them from participation in any meaningful way. I came to
realize there were literally millions of people out there being denied these basic
rights . . . . 36
But Congress also thought crime victim participation in the criminal
justice system could be instrumentally useful. For example, in protecting a
victim’s right to be heard by those determining a defendant’s sentence, a
victim might be able to provide important information that could alter that
sentence. As a result, the sentence might reflect a fuller appreciation of the
danger posed by a defendant, and the judge might take appropriate steps to
prevent others from being victimized. 37
Congress also intended to ensure that crime victims were not
revictimized in the criminal justice process—that is, that they would not
suffer what scholars have called “secondary harm” in the process. 38 The
concern is that victims suffer when they are excluded from the criminal
justice process. Congress sought to end that suffering by making victims
meaningful participants in criminal cases. 39
C. AN ILLUSTRATION OF THE PRE-CHARGING ISSUE: THE JEFFREY
EPSTEIN CASE
Given the potentially expansive scope of victims’ rights under both
state provisions and the CVRA, a critical question arises about how to apply
them: Do the rights come into existence only after prosecutors formally file
34 Compare 18 U.S.C. § 3771(d), with Susan Bandes, Victim Standing, 1999 UTAH L. REV.
331, 344–45 (illustrating the debate surrounding victim standing prior to adoption of the CVRA).
35 150 CONG. REC. 7296 (statement of Sen. Dianne Feinstein).
36 Id. at 7298 (statement of Sen. Jon Kyl).
37 Id.
38 See, e.g., Douglas Evan Beloof, The Third Model of Criminal Process: The Victim
Participation Model, 1999 UTAH L. REV. 289, 294–96; Richard A. Bierschbach, Allocution and
the Purposes of Victim Participation Under the CVRA, 19 FED. SENT’G REP. 44, 46 (2006).
39 150 CONG. REC. 7298 (statement of Sen. Jon Kyl).
68 CASSELL ET AL. [Vol. 104
criminal charges? Or do they attach at some earlier point in the process?
Does v. United States, a federal case in the U.S. District Court for the
Southern District of Florida, usefully illustrates the issue. 40 In that case, the
U.S. Attorney’s Office for the Southern District of Florida developed
considerable evidence that Jeffrey Epstein, a billionaire with extensive
political and social connections, 41 had sexually molested more than thirty
young girls between 2001 and 2007 at his West Palm Beach mansion. 42
The U.S. Attorney’s Office entered into contentious plea negotiations with
Epstein over how the case should be resolved. The prosecutors initially
sought a resolution that would have required Epstein to plead guilty to at
least a felony sex offense. After pressure from Epstein, for reasons that
have never been clearly explained, 43 the U.S. Attorney’s Office agreed to
enter into a nonprosecution agreement. Under the agreement, the U.S.
Attorney’s Office agreed not to prosecute him and, in exchange, Epstein
agreed to plead guilty to two state felonies for soliciting prostitution with a
minor. After entering those guilty pleas, Epstein was sentenced to only
eighteen months in state jail. 44 No federal charges were ever filed and
40 Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011). In the interest of full
disclosure, two of the authors of this Article (Cassell and Edwards) are co-counsel for the
victims in this case. The statement of the facts in this Article draws heavily on the victims’
allegations as they have detailed in their pending motion for summary judgment in the case.
See Jane Doe #1 & Jane Doe #2’s Motion for Finding of Violations of the Crime Victims’
Rights Act and Request for a Hearing on Appropriate Remedies at 3–23, Does, 817 F. Supp.
2d 1337 (No. 9:08-cv-80736-KAM) [hereinafter Jane Doe Motion] (providing fifty-three
proposed facts in the case). The U.S. Attorney’s Office has generally disputed some of these
allegations without offering specifics as to what happened. See, e.g., United States’
Response to Jane Doe #1 & Jane Doe #2’s Motion for Finding of Violations of the Crime
Victim Rights Act and Request for a Hearing on Appropriate Remedies at 34–43, Does, 817
F. Supp. 2d 1337 (No. 9:08-cv-80736-KAM) [hereinafter United States’ Response]. As of
this writing, Epstein has declined to intervene in the case to dispute the allegations.
41 See, e.g., Paul Harris, Prince Andrew’s Link to Sex Offender Jeffrey Epstein Taints
Royalty in US, GUARDIAN (Mar. 12, 2011), http://goo.gl/0I4vAE; Landon Thomas Jr., Jeffrey
Epstein: International Moneyman of Mystery, N.Y. MAG., http://goo.gl/11Cayc (last visited
Nov. 26, 2013).
42 See Jane Doe Motion, supra note 40, at 3–4; Abby Goodnough, Questions of
Preferential Treatment Are Raised in Florida Sex Case, N.Y. TIMES, Sept. 3, 2006, at A19.
43 The U.S. Attorney responsible for the plea deal later revealed that after negotiations
started, “[w]hat followed was a year-long assault on the prosecution and the prosecutors” by
Epstein. Letter from R. Alexander Acosta, former U.S. Att’y, to Whom It May Concern
(Mar. 20, 2011), reprinted in Conchita Sarnoff, Behind Pedophile Jeffrey Epstein’s
Sweetheart Deal, DAILY BEAST (Mar. 25, 2011, 3:17 AM), http://goo.gl/kyveiF. Acosta,
however, claimed that the pressure did not influence the ultimate disposition of the case. Id.
44 Landon Thomas Jr., From Paradise to County Jail: A Billionaire Financial Adviser
Will Serve 18 Months in Sex Case, N.Y. TIMES, July 1, 2008, at C1.
2014] CRIME VICTIMS’ RIGHTS 69
Epstein spent much of the jail term on “work release” to his luxurious
office. 45
The U.S. Attorney’s Office did not tell Epstein’s victims about the
nonprosecution agreement until well after it had taken effect. To the
contrary, even after the nonprosecution agreement had been signed, the
Office continued to tell the victims that the case was still “under
investigation” and that they should be “patien[t].” 46 When the victims
learned of the agreement, two of them (Jane Doe Number One and Jane
Doe Number Two) filed suit in federal court under the Crime Victims’
Rights Act, arguing that the prosecutors had violated their CVRA right to
confer as well as their right to be treated fairly. 47 The victims contended
that prosecutors should have conferred with them about the nonprosecution
agreement before it became final.
In response, the U.S. Attorney’s Office argued primarily that it was
under no obligation to extend the victims any rights under the CVRA. It
was the Government’s blunt position that “CVRA rights do not attach in the
absence of federal criminal charges filed by a federal prosecutor.” 48 In
short, the Government argued it was not required to confer in any way with
the victims, or even treat them fairly, because the CVRA was not yet in
play. The issue is thus squarely framed: Is the Government correct in its
assertion that it has no CVRA obligations in cases like the Epstein case
where federal prosecutors never lodged federal charges against a suspect?
In view of the CVRA’s prominence, resolution of this issue may shed
important light on the nature of crime victims’ enactments and the breadth
of the role that crime victims should have in the criminal justice process.
II. THE CVRA’S APPLICATION BEFORE FORMAL CHARGES ARE FILED
To analyze the issue of whether the CVRA extends rights to crime
victims before prosecutors have formally filed charges, it is useful to look at
the CVRA’s purposes, language, and judicial interpretations. This Part
looks at each of these three issues in turn.
45 See Michele Dargan, Feds Say They Treated Epstein Victims Fairly, PALM BEACH
DAILY NEWS (Apr. 8, 2011, 7:23 PM), http://goo.gl/rTGDed; Conchita Sarnoff, Billionaire
Pedophile Goes Free, DAILY BEAST (July 20, 2010, 7:05 PM), http://goo.gl/MSTi17.
46 See Jane Doe Motion, supra note 40, at 14, 16 (internal quotation marks and citations
omitted).
47 See Emergency Victim’s Petition for Enforcement of Crime Victim’s Rights Act, 18
U.S.C. Section 3771 at 2, Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011) (No.
9:08-cv-80736-KAM).
48 United States’ Response, supra note 40, at 7.
70 CASSELL ET AL. [Vol. 104
A. THE CVRA’S PURPOSES
An analysis of the CVRA’s application before prosecutors have filed
charges must begin by assessing the CVRA’s purposes because any
interpretation of the CVRA that is divorced from the statute’s purposes
would run the risk of defeating the statute’s aims. It is axiomatic that courts
should “give faithful meaning to the language Congress adopted in the light
of the evident legislative purpose in enacting the law in question.” 49
As discussed above, 50 one important goal of the CVRA was to keep
crime victims informed about any developments in the criminal justice
process. But the need to be informed does not begin with the filing of a
formal criminal charge. A crime victim needs to know what is happening
before formal charging—during a criminal investigation, for example—just
as much as she needs to know what is happening in court. Indeed, she may
have a greater need to know, as she may be concerned that the criminal who
harmed her is still on the loose, posing a danger to her.
Similarly, concerning the second purpose—facilitating victim
participation 51 —without a right to pre-charging involvement, victims may
be effectively shut out of the process entirely. The Epstein case provides a
useful illustration of why the CVRA must be understood to extend rights to
victims prior to indictment. The prosecutors handling the investigation
reached an agreement with Epstein that barred federal prosecution of sex
offenses committed against dozens of victims, including Jane Doe Number
One and Jane Doe Number Two. If CVRA rights did not extend to the
negotiations surrounding the agreement, then the victims never would have
had any ability to participate in the resolution of the case. 52
A construction of the CVRA that extends rights to victims before
charges are filed would be entirely consistent with the CVRA’s
participatory purpose. If victims have the ability to participate in a precharging
plea bargaining process, for example, victims can help ensure that
prosecutors do not overlook anything that should be covered in the plea
deal. For example, victims might be able to obtain agreement to a “no
contact” order or valuable restitution—points that the prosecutor might fail
49 Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S.
Ct. 1396, 1409 (2010) (quoting United States v. Bornstein, 423 U.S. 303, 310 (1976))
(internal quotation marks omitted).
50 See supra notes 24–27.
51 See supra notes 28–29.
52 Even the Justice Department seems to recognize this point. As a matter of policy, the
Department extends to victims the right to confer with prosecutors in situations where plea
discussions occur before charges have been brought. U.S. DEP’T OF JUSTICE, OFFICE FOR
VICTIMS OF CRIME, ATTORNEY GENERAL GUIDELINES FOR VICTIM AND WITNESS ASSISTANCE
41–42 (2011 ed., rev. May 2012) [hereinafter ATTORNEY GENERAL GUIDELINES].
2014] CRIME VICTIMS’ RIGHTS 71
to consider in crafting a plea. Similarly, allowing victims to participate
early in the process avoids retraumatizing victims. Again, as the Epstein
case usefully illustrates, it may be extremely difficult for victims to
discover after the fact that potential criminal charges against a criminal who
has abused them have been secretly bargained away. Jane Doe Number
One and Jane Doe Number Two, for example, were outraged when they
discovered prosecutors had entered into an agreement blocking any
prosecution of sex offenses Epstein committed against them—and all
without telling them. 53
In short, the purposes animating the CVRA all suggest that the Act
was meant to, and should, extend rights to crime victims before formal
charges are filed.
B. THE CVRA’S PLAIN LANGUAGE
While the general purposes of the CVRA support a broad
interpretation of the Act, it is important to examine whether those purposes
have been expressed in the Act’s language. Without a linkage to the Act’s
text, the general purpose might not provide a sound basis for
interpretation. 54 But the CVRA’s plain language makes clear that Congress
intended for the law to provide at least some rights to crime victims
throughout the criminal justice process, even before the filing of criminal
charges.
According to its text, the CVRA provides eight specifically
enumerated rights for crime victims and an additional right to be reasonably
notified of these rights. 55 Some of these rights presuppose the formal filing
of criminal charges. For instance, the CVRA extends to victims the “right
to reasonable, accurate, and timely notice of any public court proceeding.” 56
That particular right obviously does not apply before charges are filed, as
no “court proceedings” exist before a defendant is charged.
But the CVRA also promises crime victims rights that are not
specifically tied to court proceedings. Perhaps most expansively, the
CVRA guarantees victims the “right to be treated with fairness and with
53 Without disclosing confidential attorney–client communications, this fact is readily
apparent from victims’ filings in the Epstein case. See, e.g., Jane Doe Motion, supra note 40, at
17 (stating that the victims relied on the U.S. Attorney’s Office representatives “to their
detriment[,]” that if they knew the true facts, “they would have taken steps to object” to the plea
agreement, and that they believed criminal prosecution to be “extremely important”).
54 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 56 (2012).
55 18 U.S.C. § 3771(a) (2012) (enumerating eight rights); id. § 3771(c)(1) (requiring
government officers use “their best efforts” to notify victims of their rights).
56 Id. § 3771(a)(2).
72 CASSELL ET AL. [Vol. 104
respect for the victim’s dignity and privacy,” 57 a broad right that does not
appear to be directly linked to a filed court case. Similarly, the CVRA
promises victims the “reasonable right to confer with the attorney for the
Government in the case.” 58 In this section, the CVRA’s drafters appear to
have eschewed a reference to court proceedings, using a broader term
instead. Of course, a “case” can refer both to a judicial case before a court
and an investigative case pursued by a law enforcement officer. It is
common usage to say such things as, “The police officer investigated and
solved the case.” Dictionary definitions of the word “case” support this
varied interpretation. 59
If there remained any doubts about whether the CVRA applies during
the investigative part of the criminal justice process, two other provisions in
the CVRA resolve them. The CVRA specifically directs that “[o]fficers
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 [the CVRA].” 60 Of
course, there would be no reason to direct that agencies involved in the
“detection” and “investigation” of crime have CVRA obligations if the Act
did not extend to pre-charging situations. Congress thus directly envisioned
the victims’ rights law to apply during the “detection” and “investigation”
phases of criminal cases.
Similarly, the CVRA’s venue provision instructs that crime victims
who seek to assert rights in pre-charging situations should proceed in the
court where the crime was committed: “The rights described in subsection
(a) [of the CVRA] shall be asserted in the district court in which a
defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in the district in which the crime occurred.” 61
Here again, it is hard to see why this provision would be necessary unless
the CVRA applies before the formal filing of charges.
For all these reasons, the CVRA’s plain language indicates that the
victims have protected rights under the Act even before charges are filed.
57 Id. § 3771(a)(8).
58 Id. § 3771(a)(5) (emphasis added).
59 See, e.g., BLACK’S LAW DICTIONARY 243–44 (9th ed. 2009) (defining, among the
definitions of “case,” a “test case” as “[a] criminal investigation” as in “the Manson case”);
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED 345 (1993) (defining “case” as “a circumstance or situation (as a crime)
requiring investigation or action by the police or other agency”).
60 18 U.S.C. § 3771(c)(1) (emphasis added).
61 Id. § 3771(d)(3) (emphasis added).
2014] CRIME VICTIMS’ RIGHTS 73
C. COURTS RECOGNIZE THAT CRIME VICTIMS HAVE CVRA RIGHTS
BEFORE CHARGING
Because crime victims lack a right to appointed counsel, many victims
have difficulty litigating the scope of their rights. 62 But in a few cases,
victims have been able to secure counsel to argue that they have rights in
the criminal justice process during the investigation of federal crimes.
When those cases have reached the issue of whether the CVRA applies
before charges have been filed, courts have uniformly agreed with the
victims’ position.
Perhaps the leading case to date to assess this question is the Fifth
Circuit’s decision in In re Dean. 63 There, a wealthy corporate criminal
defendant reached a generous plea deal with the Government—a deal that
the Government filed for approval with the district court without conferring
with the victims. Citing procedural rights under the CVRA, the victims
requested that the trial court reject the plea agreement. 64 The District Court
for the Southern District of Texas specifically concluded that victims’
CVRA rights could apply during the investigation of the crime: “There are
clearly rights under the CVRA that apply before any prosecution is
underway.” 65 The district court concluded, however, that the Government
had not violated the CVRA because it had secured judicial permission to
dispense with notification to victims. 66
The victims sought appellate review in the Fifth Circuit. 67 There, the
court concurred with the district court that CVRA rights apply before trial.
Unlike the district court, however, it held that the Government had violated
the victims’ rights:
The district court acknowledged that “[t]here are clearly rights under the CVRA that
apply before any prosecution is underway.” Logically, this includes the CVRA’s
establishment of victims’ “reasonable right to confer with the attorney for the
Government.” At least in the posture of this case (and we do not speculate on the
62 John W. Gillis & Douglas E. Beloof, The Next Step for a Maturing Victim Rights
Movement: Enforcing Crime Victim Rights in the Courts, 33 MCGEORGE L. REV. 689, 693 (2002).
63 527 F.3d 391 (5th Cir. 2008). Other aspects of the case are discussed in Paul G.
Cassell & Steven Joffee, The Crime Victims’ Expanding Role in a System of Public
Prosecution: A Response to the Critics of the Crime Victims’ Rights Act, 105 NW. U. L. REV.
COLLOQUY 164, 172–76 (2011).
64 In re Dean, 527 F.3d at 392.
65 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at *11 (S.D.
Tex. Feb. 21, 2008).
66 Id. at *1, *19.
67 For discussion of the difficulties crime victims face to obtain appellate review of their
claims, see generally Paul G. Cassell, Protecting Crime Victims in Federal Appellate Courts:
The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provision, 87
DENV. U. L. REV. 599 (2010).
74 CASSELL ET AL. [Vol. 104
applicability to other situations), the government should have fashioned a reasonable
way to inform the victims of the likelihood of criminal charges and to ascertain the
victims’ views on the possible details of a plea bargain. 68
The Fifth Circuit then remanded the matter to the district court to determine
the appropriate remedy for the violation of the victims’ rights. 69
The Fifth Circuit’s decision in Dean has been cited favorably in four
recent district court decisions, which provides further support for the
conclusion that the CVRA applies before charges have been filed. In
United States v. Rubin, 70 victims of a federal securities fraud argued that
they had CVRA rights even before prosecutors filed a superseding
indictment covering the specific crimes affecting the victims. Citing Dean,
the District Court for the Eastern District of New York agreed that the
rights were expansive and could apply before charges were filed but were
subject to the outer limit that the Government has at least “contemplated”
charges. 71
Similarly, in United States v. Oakum, 72 the District Court for the
Eastern District of Virginia considered a claim that CVRA rights did not
apply until after a defendant had been convicted. In rejecting that
argument, the court agreed with the Dean court that victims acquire rights
even before a prosecution begins. 73
The District Court for the Northern District of Indiana held to the same
effect in In re Petersen. 74 There, the court held that a victim’s right to be
treated with fairness and with respect for [his or her] dignity and privacy
“may apply before any prosecution is underway and isn’t necessarily tied to
a ‘court proceeding’ or ‘case.’” 75 The court, however, found that the
“conclusory allegations” in the victims’ petition did not “create a plausible
claim for relief under the CVRA.” 76
68 In re Dean, 527 F.3d at 394 (internal citations omitted).
69 Id. at 396. On remand, the district court held additional hearings in which the victims
participated, satisfying their CVRA rights. See United States v. BP Prods. N. Am. Inc., 610
F. Supp. 2d 655, 660 (S.D. Tex. 2009).
70 558 F. Supp. 2d 411 (E.D.N.Y. 2008).
71 Id. at 419 (internal citation omitted). Rubin’s suggestion about limitations that apply
to pre-indictment assertions of rights is discussed at notes 184–187 and 193 infra and
accompanying text.
72 No. 3:08cr132, 2009 WL 790042 (E.D. Va. Mar. 24, 2009).
73 Id. at *2.
74 No. 2:10-CV-298 RM, 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010).
75 Id. at *2 (citing In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); United States v. BP
Prods. N. Am. Inc., H-07-434, 2008 WL 501321 (S.D. Tex. Feb. 21, 2008)).
76 Id. Petersen also held that one specific CVRA right—the right to confer—only
applies after charges have been filed. Id. But the authorities Petersen cites for that
proposition prove no such thing. Confusingly, Petersen cited the Fifth Circuit’s ruling in
2014] CRIME VICTIMS’ RIGHTS 75
Perhaps the most extensive discussion of this issue has come from the
Epstein case discussed earlier. 77 Overruling the Government’s argument
that the CVRA only applies after the formal filing of charges, Does v.
United States held that “the statutory language clearly contemplates precharge
proceedings.” 78 The court in Does explained that “[c]ourt
proceedings involving the crime are not limited to post-complaint or postindictment
proceedings, but can also include initial appearances and bond
hearings, both of which can take place before a formal charge.” 79 The court
also noted that the CVRA’s “requirement that officials engaged in
‘detection [or] investigation’ [of crimes] afford victims the rights
enumerated in subsection (a) surely contemplates pre-charge application of
the CVRA.” 80 Finally, the court in Does noted that “[i]f the CVRA’s rights
may be enforced before a prosecution is underway, then, to avoid a strained
reading of the statute, those rights must attach before a complaint or
indictment formally charges the defendant with the crime.” 81
In sum, the relevant case law unanimously agrees that the CVRA
extends rights to crime victims before charges have been filed.
III. THE JUSTICE DEPARTMENT’S UNPERSUASIVE POSITION
Despite the CVRA’s broad remedial purposes, its expansive language
referring to investigations, and the unanimous case law extending rights to
victims prior to defendants being charged, the OLC released a
memorandum in 2011 concluding that CVRA rights attach only “from the
time that criminal proceedings are initiated (by complaint, information, or
indictment).” 82 OLC’s analysis is unpersuasive. Although OLC’s opinion
Dean for support; but (as just explained above) Dean held exactly the opposite. Similarly,
Petersen cites other cases involving the right to confer after charges have been filed. Id. But
none of these cases actually presented the issue of the CVRA’s application to pre-indictment
situations, since charges had already been filed in each of these cases. See, e.g., In re
Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008).
77 Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011).
78 Id. at 1341.
79 Id.
80 Id. at 1342.
81 Id. Recently, the district court in the Does case also rejected Government efforts to
dismiss the action. The district court found that, if the victims could prove the factual
allegations they have made, then they would be entitled to relief, including potentially the
relief of invalidating the nonprosecution agreement that Epstein obtained from the
Government. Does v. United States, No. 9:08-cv-80736-KAM, 2013 WL 3089046, at *3
(S.D. Fla. June 19, 2013).
82 OLC CVRA Rights Memo, supra note 2, at 1. Although the opinion is dated December
17, 2010, it was publicly released on May 20, 2011. See Letter from Jon Kyl, supra note 3.
76 CASSELL ET AL. [Vol. 104
invokes the CVRA’s definition of crime “victim,” its legislative intent, and
its structure, a closer reading of each demonstrates little support for the
notion that crime victims must await the formal filing of charges before
accruing CVRA rights.
A. OLC’S MISREADING OF THE CVRA’S DEFINITION OF “VICTIM”
OLC’s lead argument is that the CVRA’s definition of “victim”
presupposes that criminal charges have been formally filed. 83 The CVRA
defines a “victim” who is protected as “a person directly and proximately
harmed as a result of the commission of a Federal offense.” 84 Focusing on
the word “offense,” OLC concedes that it does not “conclusively resolve”
the question of when rights attach. Nevertheless, OLC claims that the word
“naturally suggests that a person’s status as a ‘crime victim’ can only be
determined after there has been a formal decision to charge a defendant
with a particular Federal offense.” 85 OLC goes on to elaborate:
Under this reading, the earliest that a “crime victim” under the Act could be identified
would be upon the filing of a criminal complaint—that is, at the earliest point at which
there is a sworn written statement of probable cause to believe that a particular
defendant committed an identified Federal offense and hence the first point at which it
is possible with any certainty to identify a “crime victim” directly and proximately
harmed by the commission of that offense. 86
OLC is disingenuous in asserting that the “first point” at which a
person has been harmed by a federal crime arises only after a criminal
complaint has been filed. The Department routinely makes such
determinations at earlier points in criminal cases, such as when it sends a
“target letter” to a defense attorney during a grand jury investigation. 87
Indeed, OLC remarkably ignores the fact that the Department is directly
required to identify victims of a crime before the filing of a criminal
complaint, both by statute and through internal policy directives.
The Victims’ Rights and Restitution Act of 1990 (VRRA) 88 requires
the Department to identify victims before the filing of a criminal complaint.
83 OLC CVRA Rights Memo, supra note 2, at 6.
84 18 U.S.C. § 3771(e) (2012) (emphasis added).
85 OLC CVRA Rights Memo, supra note 2, at 5.
86 Id.
87 A target letter explains the procedural process underlying an indictment and places the
defendant on notice of the general nature of the government’s criminal investigation. See
U.S. DEP’T OF JUSTICE, TITLE 9: U.S. ATTORNEYS’ CRIMINAL RESOURCE MANUAL § 160,
[hereinafter CRIMINAL RESOURCE MANUAL] available at http://goo.gl/YHLDke (providing an
example target letter); infra Part III.A (developing this point further).
88 Pub. L. No. 101-647, 104 Stat. 4820 (codified as amended at 42 U.S.C. §§ 10601,
10606–07 (2006)).
2014] CRIME VICTIMS’ RIGHTS 77
Passed in 1990, the VRRA provided crime victims with a set of procedural
rights similar to those found in the CVRA, along with rights to notification
about victim services. 89 In 2004, the CVRA repealed and replaced the
section of the VRRA listing procedural rights, while leaving other parts of
the VRRA intact. 90 Under the remaining parts of the VRRA, the Justice
Department must inform victims of federal crimes of services that are
available to them, including “emergency medical and social services,”
counseling, and support. 91 The Department is further obligated to keep
victims fully informed about “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.” 92 These rights to notice about
“emergency medical and social services” 93 as well as to the “status of the
investigation of the crime” 94 obviously require the Department to identify
victims of federal crimes before formal charges have been filed. Indeed, the
VRRA makes this point clear by directing the Department to not only notify
the victim about the status of the investigation but also about the later
“filing of charges against a suspected offender.” 95 The VRRA then extends
victims’ rights to information through the rest of the criminal justice
process by requiring the Department to provide notice to victims of such
things as the imposed sentence and the defendant’s release. 96
The VRRA not only requires the Department to identify victims during
the investigation of a crime, it also defines those victims in a very similar
fashion to the CVRA. The VRRA defines “victim” as a “person that has
suffered direct physical, emotional, or pecuniary harm as a result of the
commission of a crime.” 97 Thus, the Department is already routinely
identifying persons who have been “harmed” by federal crimes shortly after
the commission of those crimes and well before formal charging.
The Attorney General has also promulgated internal guidelines
requiring Justice Department components to identify victims rapidly after a
crime. The Attorney General Guidelines for Victim and Witness Assistance
provide that “Department responsibilities to crime victims begin as soon as
possible after the detection of a crime at which they may be undertaken
89 See supra notes 22–23 and accompanying text.
90 Justice for All Act of 2004, Pub. L. No. 108-405, § 102(a), 118 Stat. 2260, 2261
(2004) (codified at 18 U.S.C. § 3771(a) (2012)).
91 See 42 U.S.C. § 10607(c).
92 Id. § 10607(c)(3)(A).
93 Id. § 10607(c)(1)(A).
94 Id. § 10607(c)(3)(A).
95 Id. § 10607(c)(3)(C).
96 Id. § 10607(c)(3)(G).
97 Id. § 10607(e)(2).
78 CASSELL ET AL. [Vol. 104
without interfering in the investigation. Generally, this point in time is
defined by the opening of a criminal investigation.” 98
Given the way the two statutes work, it would make no sense to
artificially confine the CVRA’s reach until after the filing of a criminal
complaint. Before then, victims will have often received information from
the Department about the status of the investigation. They might wish to
confer with prosecutors about how the case is proceeding, and the CVRA
extends to them a right to confer. 99 Similarly, while the Department is
notifying victims about the services they may receive and the status of an
investigation, it is important that the victims be treated fairly. The CVRA
extends the right to be treated fairly. 100 Indeed, it would be absurd to think
that Congress wanted to permit the Justice Department to treat crime
victims unfairly until criminal charges have been filed.
Instead of recognizing Congress’s intent, OLC’s 2011 memorandum
simply cites to a series of cases in which courts concluded that a victim of
uncharged conduct should not be afforded statutory protections. 101 Yet
none of these cases—United States v. Turner, 102 Searcy v. Paletz, 103 or
Searcy v. Skinner 104 —provide strong support for OLC’s position. Turner is
a particularly poor fit. Although OLC’s memorandum characterizes Turner
as excluding victims of uncharged conduct, 105 the magistrate judge adopted
an inclusive reading of the statute precisely because of his reservations
about the CVRA’s legislative history and plain language. The judge
suggested that “any person who self-identifies as [a victim]” could be
presumed to qualify for protection under the CVRA as a preliminary
matter. 106 In fact, the line quoted by the Department is lifted out of context.
The full sentence reads: “While the offense charged against a defendant can
98 ATTORNEY GENERAL GUIDELINES, supra note 52, at 7 (internal citations omitted); see
also 42 U.S.C. § 10607(b).
99 18 U.S.C. § 3771(a)(5) (2012) (preserving “[t]he reasonable right to confer with the
attorney for the Government in the case”).
100 Id. § 3771(a)(8) (preserving “[t]he right to be treated with fairness and with respect
for the victim’s dignity and privacy”).
101 OLC CVRA Rights Memo, supra note 2, at 6 n.6.
102 367 F. Supp. 2d 319 (E.D.N.Y. 2005).
103 No. 6:07-1389-GRA-WMC, 2007 WL 1875802 (D.S.C. June 27, 2007).
104 No. 6:06-1418-GRA-WMC, 2006 WL 1677177 (D.S.C. June 16, 2006).
105 OLC CVRA Rights Memo, supra note 2, at 6 n.6.
106 Turner, 367 F. Supp. 2d at 327 (“Instead, I have taken and will continue to follow an
inclusive approach: absent an affirmative reason to think otherwise, 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.”).
2014] CRIME VICTIMS’ RIGHTS 79
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.” 107
Paletz and Skinner similarly provide scant support for the
Department’s position. In Skinner, a prison inmate attempted to bring a pro
se civil suit against another inmate for allegedly attacking him during
incarceration. 108 In dismissing the suit in an unpublished decision, the
district court recognized that the Government had expressly declined to
bring charges against the other inmate and concluded that the CVRA did
not create a “mechanism to bring an action against Defendant directly.” 109
In Paletz, that same inmate brought a similar pro se claim against another
inmate, the Federal Bureau of Prisons, the FBI, and the U.S. Attorney
General. 110 In a parallel, unpublished decision, the district court dismissed
the suit, noting that the CVRA is designed to give victims certain rights
“within the prosecutorial process against a criminal defendant.” 111
Because Skinner and Paletz involve (apparently frivolous) civil suits,
they say nothing about the CVRA’s reach in criminal cases, and any
language to that effect would be pure dicta. Moreover, the courts’ terse
analysis in both cases does not contain any substantive discussion of
whether CVRA rights apply in criminal cases before the filing of charges.
Instead, the courts simply cited to language from a Second Circuit decision
that stated that the CVRA does not give victims any rights against
defendants until those defendants have been convicted 112 —a holding clearly
limited to restitution, as many other CVRA rights clearly apply before
conviction. 113 Reviewing these two cases in an extended, published
opinion, the U.S. District Court for the Southern District of Texas noted that
reading these two decisions as standing for the proposition that charges
must be filed for CVRA rights to attach “appears inconsistent with the
CVRA recognition of certain subsection (a) rights that apply during
investigation, before any charging instrument is filed.” 114 As a result, OLC
107 Id. at 326.
108 Skinner, 2006 WL 1677177, at *1–2.
109 Id. at *2.
110 Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL 1875802, at *1–2 (D.S.C.
June 27, 2007).
111 Id. at *2.
112 Id. (“However, ‘the CVRA does not grant victims any rights against individuals who
have not been convicted of a crime.’” (quoting In re W.R. Huff Asset Mgmt. Co., 409 F.3d
555, 564 (2d Cir. 2005))).
113 Of course, a defendant cannot be ordered to pay restitution as part of his sentence
until he has been found guilty. See 18 U.S.C. § 3664 (2012) (describing sentencing
procedures for ordering restitution).
114 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at *12 n.7
(S.D. Tex. Feb. 21, 2008).
80 CASSELL ET AL. [Vol. 104
vastly overstates its position when it asserts that “most courts . . . have
declined to extend enforceable rights under the CVRA to alleged victims of
conduct that did not lead to criminal proceedings.” 115 All the courts that
have actually reached the issue have concluded exactly the opposite. 116
B. OLC’S DISTORTION OF THE CVRA’S STRUCTURE AND LEGISLATIVE
HISTORY
The next section of OLC’s memorandum maintains that the CVRA’s
structure and legislative history lead to the conclusion that the CVRA is
“best understood” as extending rights after charges have been filed. Here
again, OLC’s analysis is truncated at best and misleading at worst.
OLC begins this part of its analysis by observing that some of the
rights in the CVRA are limited to court proceedings. OLC notes, for
example, that the CVRA gives victims the “right to reasonable, accurate,
and timely notice of any public court proceeding . . . involving the
crime.” 117 But the fact that some of the rights listed in the CVRA apply to
court proceedings hardly means that all of the rights are to be so restricted.
The federal criminal justice process includes stages that are pre-charging,
post-charging, and post-conviction. It would hardly be surprising to find
that a statute that Congress intended to be “broad and encompassing” 118
covered events occurring after the filing of charges.
Indeed, OLC appears to recognize that at least three of the rights listed
in the CVRA could easily apply before charges are filed: (1) the “right to be
reasonably protected from the accused”; (2) the “reasonable right to confer
with the attorney for the Government in the case”; and (3) the “right to be
treated with fairness and with respect for the victim’s dignity and
privacy.” 119 None of these rights explicitly refer to court “proceedings” or
other events (such as parole hearings) that necessarily occur after the filing
of formal charges. 120
115 OLC CVRA Rights Memo, supra note 2, at 5–6. Notably, the Department does not
embrace the language from Huff found within the Skinner and Paletz decisions because
presumably such an approach would be contrary to many of the rights found in the CVRA.
116 See infra Part I.C.
117 OLC CVRA Rights Memo, supra note 2, at 6 (emphasis added) (quoting 18 U.S.C.
§ 3771(a)(2)).
118 150 CONG. REC. 7295 (2004) (statement of Sen. Dianne Feinstein).
119 OLC CVRA Rights Memo, supra note 2, at 7–8, 10 (quoting 18 U.S.C. § 3771(a)(1),
(5), (8)).
120 OLC appears to have overlooked another right that could well apply before charges
are filed: the right to be notified of one’s rights under the CVRA. See 18 U.S.C.
§ 3771(c)(1) (requiring prosecutors to “make their best efforts to see that crime victims are
notified of, and accorded, the rights described in [the CVRA]”); United States v. Rubin, 558
F. Supp. 2d 411, 428 (E.D.N.Y. 2008) (discussing potential application of the right to
2014] CRIME VICTIMS’ RIGHTS 81
For purposes of this Article, it is appropriate to focus on the last two of
these three rights: the right to confer and the right to fair treatment. The
first of these three rights—the right to be reasonably protected—is already
clearly extended by another statute to crime victims before the filing of
charges. While OLC does not acknowledge this fact, the VRRA extends
the first right to crime victims, directing that 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.” 121 Because a “suspected” offender obviously exists before the
filing of criminal charges, the VRRA envisions the right to protection being
provided as soon as is practical after a victim suffers from the commission
of a crime. Additionally, the sections of the Attorney General Guidelines
for Victim and Witness Assistance addressing the VRRA direct that Justice
Department components must provide reasonable protection even before the
filing of criminal charges. 122 So, under the VRRA, the Justice Department
should already be providing reasonable protection for a victim before an
offender is indicted, regardless of how the CVRA is interpreted. 123
The VRRA, however, does not contain a right to confer and a right to
fair treatment and respect for the victim’s dignity. Therefore, if victims are
going to receive these statutory rights before trial, these rights must be
found in the CVRA. With regard to the CVRA provision that victims have
the “reasonable right to confer with the attorney for the Government in the
case,” 124 OLC contends that “[t]he phrase ‘in the case’ implies the pendency
of a judicial proceeding.” 125 To bolster its conclusion, OLC then cites
Black’s Law Dictionary, which includes among its several definitions of the
word “case” the definition “a civil or criminal proceeding.” 126 But OLC
does not acknowledge that Black’s Law Dictionary also defines and
exemplifies a “case” more broadly as a “criminal investigation <the
notification of rights before charges are filed). For purposes of this Article, it is not
necessary to explore this right in detail. If other CVRA rights apply before charges are filed,
a fortiori this right does as well. If a victim has a right, presumably the victim should be
notified of the existence of that right.
121 42 U.S.C. § 10607(c)(2) (2006) (emphasis added).
122 See ATTORNEY GENERAL GUIDELINES, supra note 52, at 7–8, 26–28.
123 Exactly what “reasonable protection” means, however, remains uncertain. See
generally Mary Margaret Giannini, Redeeming an Empty Promise: Procedural Justice, the
Crime Victims’ Rights Act, and the Victim’s Right to Be Reasonably Protected from the
Accused, 78 TENN. L. REV. 47 (2010) (suggesting the right has not been adequately defined
and proposing ways to do so).
124 18 U.S.C. § 3771(a)(5).
125 OLC CVRA Rights Memo, supra note 2, at 8.
126 Id. (citing BLACK’S LAW DICTIONARY, supra note 59, at 243).
82 CASSELL ET AL. [Vol. 104
Manson case>.” 127 Thus, Black’s Law Dictionary does not help resolve the
dispute as to which of the two meanings should be used, as there are clearly
differing meanings. While OLC’s reading may be a permissible one, so is a
pro-victim reading.
OLC also turns to the CVRA’s legislative history to bolster its
conclusion. But, here again, its analysis is misleading. OLC relies on a
passage from Senate floor colloquy between Senators Jon Kyl and Dianne
Feinstein regarding the CVRA’s scope. In OLC’s recounting of the
legislative history, the floor statements “emphasize that the right to confer
relates to the conduct of criminal proceedings after the filing of charges.” 128
For instance, OLC quotes Senator Kyl stating that “[u]nder this provision,
victims are able to confer with the Government’s attorney about
proceedings after charging.” 129
This is a truncated and deceptive description of the legislative history,
so much so that Senator Kyl sent an angry letter to Attorney General Eric
Holder complaining about the distortion. On June 6, 2011, the Senator
wrote to “express [his] surprise that [OLC is] so clearly quoting [his]
remarks out of context.” 130 Senator Kyl then went on to observe that the
colloquy began by noting that the right to confer “is intended to be
expansive.” 131 The Senator further discussed various “examples” of when
the right to confer applied, including “any critical stage or disposition of the
case. The right, however, is not limited to these examples.” 132 It was
against that backdrop that Senator Kyl gave the example of conferring
about proceedings “after charging.”
In his letter to Attorney General Holder, Senator Kyl also noted that he
had:
made clear that crime victims had rights under the CVRA even before an indictment is
filed. For example, . . . I made clear that crime victims had a right to consult about
both ‘the case’ and ‘case proceedings’—i.e., both about how the case was being
handled before being filed in court and then later how the case was being handled in
court ‘proceedings.’ 133
Senator Kyl further commented that he had discussed the CVRA’s potential
application in grand jury proceedings, an application that required the Act
127 BLACK’S LAW DICTIONARY, supra note 59, at 244.
128 OLC CVRA Rights Memo, supra note 2, at 9.
129 Id. (emphasis added) (quoting 150 CONG. REC. 7302 (2004) (statement of Sen. Jon
Kyl) (internal quotation marks and citation omitted).
130 Letter from Jon Kyl, supra note 3.
131 Id. (quoting 150 CONG. REC. S4260, S4268 (daily ed. Apr. 22, 2004) (statement of
Sen. Dianne Feinstein)).
132 Id.
133 Id.
2014] CRIME VICTIMS’ RIGHTS 83
to extend rights before indictment. 134 Thus, if anything, the legislative
history does not support OLC’s conclusion—it contradicts it. 135
OLC should have had no doubt as to the intent of Senator Kyl and his
cosponsors at the time of the Act’s passage. Shortly after shepherding the
CVRA through the Congress, Senator Kyl cowrote a law review article
about the Act. 136 In that article, he directly indicated that the CVRA applies
before charges are filed. Senator Kyl and his coauthors wrote:
While most of the rights guaranteed by the CVRA apply in the context of legal
proceedings following arrest and charging, other important rights are triggered by the
harm inflicted by the crime itself. For example, the right to be treated with fairness,
the right to be reasonably protected from the accused (who may qualify as the accused
before his arrest), and the right to be treated with respect for the victim’s dignity and
privacy each may arise without regard to the existence of legal proceedings. 137
Remarkably, OLC cited Senator Kyl’s law review article (in a footnote), but
then concluded without explanation that the CVRA cosponsor’s views were
for some reason different than Congress’s. 138
OLC also appears to acknowledge that its interpretation of the CVRA
could well contradict what it describes as prosecutorial “good practice.” 139
OLC noted that some Justice Department components (for example, the
Environmental and Natural Resources Division) had advocated that the
right to confer should apply during pre-charging plea discussions. 140 OLC
then acknowledged that limiting the right to confer until after formal
charging could “reduce the impact of a victim’s participation in subsequent
court proceedings.” 141 OLC attempted to dodge this problem by explaining:
“The question before us, though, is not whether it would be advisable as a
matter of good practice . . . for Government attorneys to confer with victims
pre-charge when appropriate . . . .” 142 OLC then explained that even under
its narrow interpretation of the statute, “the CVRA would still ensure that
134 Id.
135 Attorney General Holder never sent a response to Senator Kyl’s letter. But Assistant
Attorney General Ronald Weich sent a belated response. Letter from Ronald Weich, Assistant
Att’y Gen., to Jon Kyl, U.S. Sen. (Nov. 3, 2011) (on file with authors). That response did not
address Senator Kyl’s concern that his remarks were being quoted out of context.
136 See generally Kyl et al., supra note 19.
137 Id. at 594.
138 OLC CVRA Rights Memo, supra note 2, at 8 n.7.
139 Id. at 10.
140 Id. at 9 (citations omitted) (discussing an interdepartmental memorandum addressing
this question).
141 Id. at 10.
142 Id.
84 CASSELL ET AL. [Vol. 104
the victim has an opportunity to be heard by the court, and by the
Government, before the court accepts the plea.” 143
But OLC failed to recognize that its interpretation of the CVRA
rendered the right to be heard a nullity in many important cases—including,
notably, the Epstein case. 144 Where prosecutors and defense attorneys work
out a nonprosecution agreement that agreement will never be presented to a
court for review. Thus, in cases where the need for victim participation
may be the greatest—that is, in cases where the Government is considering
never filing any charges—OLC’s interpretation would bar victims from
having any rights at all.
Even in situations where a prosecutor works out a plea agreement,
OLC’s interpretation is problematic. As OLC recognizes, prosecutors and
defense counsel commonly work out pre-indictment plea agreements
(particularly in white-collar cases), under which a defendant will plead
guilty to certain charges. 145 Then, the parties jointly present to the district
court a criminal “information” (that is, a recitation of the charges drafted by
the prosecutor but never presented to the grand jury 146 ) and a plea
agreement, asking the court to file the criminal information and
simultaneously accept the guilty plea. As the OLC memorandum
acknowledges, a crime victim would have the right to object to the plea
agreement, because the CVRA gives crime victims the “right to be
reasonably heard” at any public proceedings involving a plea. 147 But under
OLC’s interpretation of the CVRA, a crime victim has no right to notice of
court hearings until the charges are filed. Thus, if the information and plea
are filed simultaneously, as is often the case, two scenarios are possible. A
victim could have no prior right to notice of the proceeding at which the
plea was being accepted, or alternatively (if the act of filing the information
in the course of accepting a plea triggers a notification right), the district
court would be required to stop in the middle of proceedings and ensure that
notification was belatedly provided. Of course, these difficulties are all
avoided if the right to confer is properly construed as attaching before
charges are filed, such as during plea negotiations between prosecutors and
defense attorneys.
143 Id.
144 The OLC opinion was publicly released on May 20, 2011. Perhaps not
coincidentally, this release date was shortly before the Government filed its response in the
Epstein case.
145 See OLC CVRA Rights Memo, supra note 2, at 9 (acknowledging the potential effect
of the CVRA on plea negotiations).
146 See FED. R. CRIM. P. 7(b).
147 18 U.S.C. § 3771(a)(4) (2012); OLC CVRA Rights Memo, supra note 2, at 6–7.
2014] CRIME VICTIMS’ RIGHTS 85
More importantly, extending the right in this fashion will not be
unduly burdensome for federal prosecutors. After the OLC memorandum
was made public, the Department amended the Attorney General
Guidelines for Victim and Witness Assistance to require prosecutors to
make reasonable efforts toward a goal of providing victims with a
meaningful opportunity to offer their views before plea agreements are
formally reached. 148 “In circumstances where plea negotiations occur
before a case has been brought, Department policy is that this should
include reasonable consultation prior to the filing of a charging instrument
with the court.” 149 Thus, Department policy already extends pre-charging
rights to victims. The CVRA should be understood as having the same
scope.
OLC also notes that the CVRA right “to be treated with fairness and
with respect for the victim’s dignity and privacy” is a right that could apply
before charges are filed. 150 Indeed, OLC is forced to concede (as district
courts have recognized) that the “right to be treated with fairness and with
respect for the victim’s dignity and privacy may apply with great force
during an investigation, before any charging instrument has been filed.” 151
OLC nonetheless maintains that the right to fairness only applies after
charges have been filed. OLC relies on the canon of statutory construction
noscitur a sociis, meaning that words are known by their companions, 152 for
its interpretation of the CVRA. OLC argues that because the other seven
enumerated rights are limited to post-charging situations, the eighth right
should be as well. Of course, this argument assumes that OLC’s
construction of the other seven rights is correct—a point very much in
dispute. 153 If, for example, the right to confer applies before charges are
filed, then presumably noscitur a sociis would cut the other way—the right
to fairness should likewise be construed as applying before charges are
filed.
Moreover, OLC omits from its discussion of the fairness provision any
assessment of the CVRA’s purposes. In construing a statute, a court must
consider the “purpose and context” of the statute. 154 In describing the
fairness provision, Senator Kyl emphasized that it conferred a “broad”
148 ATTORNEY GENERAL GUIDELINES, supra note 52, at 41–42.
149 Id. at 41.
150 OLC CVRA Rights Memo, supra note 2, at 10 (quoting 18 U.S.C. § 3771(a)(8)).
151 Id. (quoting United States v. BP Products North America Inc., No. H-07-434, 2008
WL 501321, at *11 (S.D. Tex. Feb. 21, 2008) (internal quotation marks omitted)).
152 Id. at 11.
153 See supra Part III.A.
154 Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1331 (2011).
86 CASSELL ET AL. [Vol. 104
right. 155 The reason for adopting such a broad right was that “[t]oo often
victims of crime experience a secondary victimization at the hands of the
criminal justice system. This provision is intended to direct Government
agencies and employees, whether they are in the executive or judiciary
branch, to treat victims of crime with the respect they deserve.” 156 OLC’s
failure to consider the purposes underlying the CVRA is a glaring
oversight.
OLC never attempts to explain why the CVRA’s drafters would want
victims to have a right to fair treatment once criminal charges were filed but
possess no such right before the filing of criminal charges. Clearly, many
victims can and do suffer secondary victimization during criminal
investigations, such as when sexual assault victims are treated
inappropriately by law enforcement agents. 157 It would contradict the
purpose of preventing victim mistreatment in the criminal justice system to
artificially limit the right to fairness to the point at which charges are filed.
The right to fairness logically applies at all stages of the criminal justice
process.
C. OLC’S INEFFECTIVE RESPONSE TO THE CVRA’S COVERAGE AND
VENUE PROVISIONS
At the end of its memorandum, OLC finally discusses what it
identifies as the two strongest arguments for construing the CVRA as
applying before charging: the coverage provision and the venue provision.
OLC acknowledges, as it must, that the CVRA’s coverage extends to any
federal employee engaged in “the detection, investigation or prosecution of
crime.” 158 Such employees “shall make their best efforts to see that crime
victims are notified of, and accorded, the rights” afforded by the statute. 159
Notably, this duty applies to individuals not just in the Justice Department
(where all federal prosecutors are located) but other agencies as well, such
155 150 CONG. REC. 7303 (2004) (statement of Sen. Jon Kyl).
156 Id.
157 See SUSAN ESTRICH, REAL RAPE 50–51 (1987) (describing how a rape victim’s sexual
history may be used against her in court proceedings); Beloof, supra note 38, at 309–10
(collecting examples of victims’ issues that arise during the investigative process); see also
PRESIDENT’S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT, supra note 10, at 57–62 (making
recommendations for how police should treat victims during the criminal justice process).
158 OLC CVRA Rights Memo, supra note 2, at 15 (quoting 18 U.S.C. § 3771(c)(1)
(2012)) (internal quotation marks omitted).
159 18 U.S.C. § 3771(c)(1).
2014] CRIME VICTIMS’ RIGHTS 87
as environmental crimes investigators in the Environmental Protection
Agency (EPA). 160
This coverage provision would seem to answer any lingering question
about whether the CVRA applies before charging. In directing that federal
employees engaged in the “detection” and “investigation” of crime must
respect victims’ rights, Congress wanted broad rights extending beyond just
the prosecution of a case. As the district court concluded in the Epstein
case, this provision “surely contemplates pre-charge application of the
CVRA.” 161
OLC gamely maintains, however, that Congress was simply trying to
provide that federal law enforcement agents should provide rights to
victims when a criminal case moves to its prosecution phase. OLC noted
the uncontroversial point that law enforcement agents “often develop a
relationship of trust with crime victims during the investigation that
continues as they assist crime victims in negotiating active criminal
proceedings.” 162 OLC then asserted:
Given this continuing active role that agents typically play during criminal
prosecutions, we find the fact that the CVRA assigns responsibility to them, together
with the attorney for the Government, to . . . accord them their rights under the CVRA
to be entirely consistent with our conclusion that those rights arise only once the
Government has initiated criminal proceedings. 163
But OLC’s contorted position never explains why Congress found it
necessary to break out three separate phases of the criminal justice process:
the “detection,” “investigation,” and “prosecution” of crime. If the
congressional intent was simply to cover, for example, FBI agents or EPA
agents during the post-charging phase of a case, it could have simply
omitted those words from the CVRA. An FBI agent, for example, would be
engaged in the “prosecution” of the case when assisting the victim after the
formal filing of charges. On OLC’s reading of the statute, the words
“detection” and “investigation” become meaningless, contrary to the wellknown
canon of construction verba cum effectu sunt accipienda, which
means that, if possible, every word and every provision is to be given
effect. 164
OLC also suggests that the “most significant” argument supporting
pre-charging application of rights is the venue provision, which allows
160 See Kyl et al., supra note 136, at 615 (“Notice should be given to the fact that it applies
not just to the Department of Justice, but to all ‘departments and agencies of the United States
engaged in the detection, investigation, or prosecution of crime.’” (citation omitted)).
161 Does v. United States, 817 F. Supp. 2d 1337, 1342 (S.D. Fla. 2011).
162 OLC CVRA Rights Memo, supra note 2, at 15.
163 Id.
164 See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).
88 CASSELL ET AL. [Vol. 104
crime victims to assert CVRA rights “in the district court in which a
defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in the district in which the crime
occurred.” 165 The Department contends that this language refers quite
narrowly to the “period of time between the filing of a complaint and the
initiation of formal charges.” 166 In support of its position, the Department
cites a Fourth Circuit case interpreting the Sixth Amendment right to
counsel, which held that a “prosecution” for purposes of that Amendment
does not begin when a criminal complaint is filed. 167 In OLC’s view, the
venue provision’s direction that victims should assert rights when “no
prosecution is underway” applies only to the limited time between when the
Government files a complaint against a defendant and some later point
when the “prosecution” actually begins. OLC notes that the filing of a
complaint triggers an initial appearance, where crime victims can have
important interests at stake, such as the right to be heard about a
defendant’s release on bail. OLC believes it is only to such post-complaint,
yet pre-indictment, proceedings (i.e., the initial appearance) that the venue
provision’s “no-prosecution-underway” language covers.
As a preliminary matter, OLC’s interpretation of the word
“prosecution” in the Department’s narrow construction of the venue
provision is a twisted one, at odds with the way that term is conventionally
used. The filing of a complaint is typically viewed as the start of a criminal
prosecution. For example, the leading criminal procedure hornbook states
that “[w]ith the filing of the complaint, the arrestee officially becomes a
‘defendant’ in a criminal prosecution.” 168
Moreover, having specifically rejected the filing of the criminal
complaint as the starting point for a “prosecution” within the CVRA’s
venue provision, OLC refuses to consider the implications of its alterative
starting point: the formal filing of an indictment. OLC states that “a
prosecution of a felony must commence with the return of an indictment by
a grand jury,” citing the Federal Rules of Criminal Procedure. 169 Yet OLC
does not pause to recognize that, while felonies proceed by way of
indictment, misdemeanors can proceed not only by indictment but also by
complaint. 170 The CVRA draws no distinction between misdemeanor and
165 OLC CVRA Rights Memo, supra note 2, at 14 (quoting 18 U.S.C. § 3771(d)(3) (2012)).
166 Id.
167 Id. (citing United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006)).
168 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.2(g), at 11 (5th ed. 2009)
(emphasis added).
169 OLC CVRA Rights Memo, supra note 2, at 14 (citing FED. R. CRIM. P. 7(a)(1)).
170 FED. R. CRIM. P. 58(b)(1) (“The trial of a misdemeanor may proceed on an
indictment, information, or complaint.” (emphasis added)).
2014] CRIME VICTIMS’ RIGHTS 89
felony offenses, broadly extending its protections to victims of any federal
offense. 171 Thus, under OLC’s interpretation that the filing of a complaint
does not trigger the CVRA, many victims who are entitled to CVRA
protections—i.e., victims of misdemeanor offenses prosecuted by way of
complaint—will never have proper venue to assert those rights because,
according to OLC’s strained argument, no prosecution ever started in their
cases.
Even limiting the focus to felony cases, OLC misleadingly describes
the Sixth Amendment case law. It is not immediately clear why one would
look to the right to counsel to determine the breadth of the term
“prosecution” in the Sixth Amendment. The right to counsel is not the only
right found in that Amendment. The Amendment also extends, for
example, a right to a speedy trial in all criminal “prosecutions.” 172 The case
law on the speedy trial right makes clear that the right “may attach before
an indictment and as early as the time of arrest and holding to answer a
criminal charge.” 173
In any event, the right to counsel cases are quite clear in providing that
a Sixth Amendment “prosecution” can (and often does) begin well before
an indictment. 174 The Supreme Court has directly held that the Sixth
Amendment’s right to counsel attaches “at or after the time that judicial
proceedings have been initiated against [a person]—‘whether by way of
formal charge, preliminary hearing, indictment, information, or
arraignment.’” 175 Thus, under this controlling precedent, some earlier point
in time before indictment is the triggering point of a Sixth Amendment
“prosecution.”
The cases that OLC cites are not to the contrary. It is true that some
federal appeals courts have stated that the mere filing of a criminal
complaint does not trigger a Sixth Amendment right to counsel. 176 But
there is a split of authority on this question, as OLC acknowledges in a
footnote. 177 More importantly for purposes of this Article, the cases holding
171 See 18 U.S.C. § 3771(e) (2012).
172 U.S. CONST. amend. VI.
173 United States v. Gouveia, 467 U.S. 180, 190 (1984) (quoting United States v.
MacDonald, 456 U.S. 1, 6–7 (1982)) (internal quotation marks omitted).
174 See, e.g., Texas v. Cobb, 532 U.S. 162, 172–73 (2001).
175 Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S.
682, 689 (1972)).
176 See, e.g., United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006).
177 OLC CVRA Rights Memo, supra note 2, at 14 n.15 (citing Hanrahan v. United
States, 348 F.2d 363, 366 n.6 (D.C. Cir. 1965)); see WAYNE R. LAFAVE ET AL., CRIMINAL
PROCEDURE § 6.4(e), at 670 (3d ed. 2007) (“There is an apparent split of authority on the
question of whether the filing of a complaint is alone enough to give rise to a Sixth
Amendment right to counsel, though the difference probably is explainable by the fact that
90 CASSELL ET AL. [Vol. 104
that the mere filing of a complaint does not start a Sixth Amendment
prosecution also make clear that a later court hearing would start such a
prosecution. For instance, in the Fourth Circuit case cited by OLC, United
States v. Alvarado, the court reasons that “the main reason a law
enforcement officer files [] a complaint is to establish probable cause for an
arrest warrant. The criminal process is still in the investigative stage, and
the adverse positions of government and defendant have yet to solidify.” 178
Relying on that reasoning, the Fourth Circuit refused to find that the right to
counsel had attached merely because a police officer had filed a complaint
to get an arrest warrant. But the Fourth Circuit distinguished that situation
from “the initiation of adversary judicial proceedings against the
defendant.” 179 An initial appearance would be such an adversary
proceeding—i.e., it would be a “prosecution” under the Sixth Amendment.
In light of this, OLC’s position that the CVRA’s venue provision’s “noprosecution-underway”
reference covers proceedings, such as an initial
appearance, does not work.
The only sensible way to construe the CVRA’s venue provision is to
read it as conveniently dividing criminal cases into two phases: a
prosecution phase and an earlier investigative phase when “no prosecution
is under way.” 180 Senator Kyl, for instance, has noted that if there are any
doubts about how to construe the CVRA, this venue provision “sweeps
them away.” 181 Once again, the language that Congress used leads
inexorably to the conclusion that the CVRA extends rights to victims before
the filing of criminal charges.
IV. WHEN PRE-CHARGING RIGHTS ATTACH UNDER THE CVRA
The zeal with which OLC argues against applying CVRA rights before
charging raises the question of why it protests so much. Although OLC
never articulated this concern, perhaps OLC worried that pre-charging
rights would be difficult to administer. Such concerns should evaporate
with a workable construction of when pre-charging rights attach. In this
Part, we propose such a construction, suggesting that CVRA rights should
attach when substantial evidence exists that a specific person has been
directly and proximately harmed as the result of a federal crime. This
approach appears to already be the method that the Department is taking, as
this document is used for multiple purposes.”); see also Felder v. McCotter, 765 F.2d 1245,
1248 (5th Cir. 1985) (citing Texas law).
178 Alvarado, 440 F.3d at 200 (citations omitted) (internal quotation marks omitted).
179 Id. (quoting United States v. Gouveia, 467 U.S. 180, 187 (1984)).
180 18 U.S.C. § 3771(d)(3) (2012).
181 Kyl et al., supra note 19, at 594.
2014] CRIME VICTIMS’ RIGHTS 91
it has extended many rights to victims before the formal filing of criminal
charges as a matter of internal policy. 182 This approach appears to be
workable, as a number of states extend rights to victims during the
investigative process. 183
A. A TEST FOR DETERMINING WHEN RIGHTS ATTACH
As explained in the earlier Parts of this Article, the CVRA clearly
envisions that crime victims would have rights in the criminal justice
process before the return of indictments or the filing of criminal complaints.
The question then as to how much earlier in the process crime victims have
rights naturally arises. Does the CVRA apply one second after a federal
crime has been committed? Or does it apply at some later point during an
investigation?
This issue was nicely framed by the U.S. District Court for the Eastern
District of New York in a securities fraud case. In the first indictment
underlying the case, the charged crime did not include various victims. A
later superseding indictment broadened the charges to include those missing
individuals. When they brought a suit under the CVRA, the court noted
that “[q]uite understandably, movants perceive their victimization as having
begun long before the government got around to filing the superseding
indictment.” 184 The court, however, explained that there must be “logical
limits” to crime victims’ rights before the filing of charges. 185 The court
noted:
For example, the realm of cases in which the CVRA might apply despite no
prosecution being ‘underway,’ cannot be read to include the victims of uncharged
crimes that the government has not even contemplated. It is impossible to expect the
government, much less a court, to notify crime victims of their rights if the
government has not verified to at least an elementary degree that a crime has actually
taken place, given that a corresponding investigation is at a nascent or theoretical
stage. 186
The logical limits that the CVRA envisions could come from how the
Justice Department interacts with criminals during the investigation of a
crime. Crime victims’ rights advocates are fond of saying that victims
“only want to be treated like criminals”—that is, they simply want to have
the same kinds of rights as criminals receive, such as the right to be notified
182 See, e.g., ATTORNEY GENERAL GUIDELINES, supra note 52, at 41–42 (discussing the
right to confer regarding plea bargains).
183 See infra Part III.D.
184 United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N.Y. 2008).
185 Id.
186 Id.
92 CASSELL ET AL. [Vol. 104
of court hearings and to attend those hearings. 187 So it is instructive to
notice that the Justice Department policy is to extend certain rights to
suspected criminals during certain points in the investigative process. That
policy might provide guidance on when crime victims’ rights would attach.
Of particular interest here is the Department’s policy for grand jury
subpoenas issued to a “target” of a criminal investigation. When such a
target is subpoenaed to testify before a grand jury, the Department of
Justice will advise that target of his rights, such as the right to refuse to
answer any question that might be incriminating. 188 The Department of
Justice defines a “target” of a criminal investigation as “a person as to
whom the prosecutor or the grand jury has substantial evidence linking him
or her to the commission of a crime and who, in the judgment of the
prosecutor, is a putative defendant.” 189
If the Department’s investigation has coalesced sufficiently so that it
can provide notice of rights to putative defendants, it should likewise be in
a position to provide notice of rights to that defendant’s victims.
Combining the Department’s definition of “target” with the CVRA’s
coverage and definition-of-victim provisions produces a formulation
whereby CVRA rights attach in (at least) the following circumstances:
CVRA rights attach when an officer or employee of the Department of
Justice or any other department or agency of the United States engaged in
the detection, investigation, or prosecution of crime has substantial
evidence that an identifiable person has been directly and proximately
harmed as a result of the commission of a federal offense or an offense in
the District of Columbia, and in the judgment of the officer or employee,
that person is a putative victim of that offense.
This formulation borrows from the CVRA’s coverage provision 190 to
define the relevant universe of substantial evidence as that in the possession
of the Justice Department or other federal agencies. For instance, if state
law enforcement officers are investigating a bank robbery, the fact that the
robbery might also be prosecuted federally 191 does not make the teller at the
bank a federal “victim” of the crime until evidence regarding the crime
comes into the possession of a federal agency. The formulation also tracks
the CVRA’s definition of “victim” in limiting the universe of potential
187 See, e.g., Cassell, supra note 15, at 1376–85 (describing the rationale underpinning
state victims’ rights statutes).
188 CRIMINAL RESOURCE MANUAL, supra note 87, § 9-11.151.
189 Id.
190 18 U.S.C. § 3771(e) (2012).
191 Id. § 2113.
2014] CRIME VICTIMS’ RIGHTS 93
victims to those who have been “directly and proximately harmed.” 192
Finally, the formulation requires some federal officer or employee to
evaluate the evidence and reach the conclusion that a federal offense has
been committed that harmed the person in question. This determination
responds to the observation by the District Court for the Eastern District of
New York that the CVRA “cannot be read to include the victims of
uncharged crimes that the government has not even contemplated.” 193 At
the same time, such a formulation obviously does not require the filing of
formal criminal charges, or even the preparation of formal criminal charges.
Instead, all that is required is for the Department to recognize that a person
is a putative victim of a federal offense, just as all that is required for the
mailing of a target letter to a subpoenaed suspected criminal, is recognition
that he is a putative defendant in a federal case.
B. APPLYING THE TEST TO THE EPSTEIN CASE
To illustrate how the test would operate, it is useful to examine the
facts of the Epstein case. Applying the proposed test to that case produces
straightforward answers, which suggests that the test would be workable in
practice.
From 2001 to 2007, Jeffrey Epstein sexually abused more than thirty
minor girls in his mansion, including Jane Doe Number One and Jane Doe
Number Two. 194 Initially, of course, his acts of abuse were secret, unknown
to law enforcement. During that period of time, the victims would not have
had rights under the CVRA.
In 2006, Epstein’s acts of abuse came to the attention of the Palm
Beach Police Department, which began investigating the case. 195 At this
point, once again, the victims would not have had rights under the proposed
CVRA test. The CVRA extends rights in the federal criminal justice
process. A state investigation does not trigger the CVRA (although it may
trigger certain state law protections, as discussed below). 196
At some point in 2006, the Palm Beach Police Department asked the
FBI to investigate Epstein on federal sex offenses, such as using a means of
192 See id. § 3771(e).
193 United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N.Y. 2008).
194 As above, see supra notes 34–41 and accompanying text, this part of the Article
draws on the factual allegations made by the victims in this case—allegations that Epstein
has not intervened to dispute. See Jane Doe Motion, supra note 40, at 3–23.
195 See Probable Cause Affidavit, Palm Beach Police Department: Police Case No. 05-
368(1) (May 1, 2006), available at http://goo.gl/fAPFw5; see also Statement of Undisputed
Facts, Epstein v. Rothstein, No. 50 2009 CA 040800XXXXMBAG (Fla. Cir. Ct. Sept. 22,
2010), available at http://goo.gl/DzMbe8.
196 See supra notes 178–95 and accompanying text as well as infra Part IV.D.
94 CASSELL ET AL. [Vol. 104
interstate communication in connection with sex offenses and traveling in
interstate commerce for the purpose of engaging in illicit sexual conduct
with minors. 197 The local police provided the FBI with information, which
the FBI then investigated. Following an investigation, the FBI determined
that the allegations of abuse against Epstein were credible, and it presented
the case to the U.S. Attorney’s Office for the Southern District of Florida.
In 2007, the Office contacted counsel for Jeffrey Epstein and began
negotiating a resolution of the case against him. 198
Under our proposed test, the victims would not have had CVRA rights
the first moment that the FBI became aware of Epstein’s possible
commission of sex offenses. But after the FBI developed substantial
evidence of those sex offenses, identified victims of those offenses, and
presented the case to the appropriate U.S. Attorney’s Office for prosecution,
CVRA rights would have attached. Accordingly, the FBI would have been
required to notify the identified victims of their rights under the CVRA (as
well as under the VRRA). From that point forward in the case, the victims
would have had CVRA rights, such as the right to fair treatment and the
right to confer with prosecutors. In this case, the victims would have had
the right to confer with prosecutors about the nonprosecution agreement
that they ultimately reached with Epstein. 199
C. CURRENT DEPARTMENT POLICY ON PRE-CHARGING RIGHTS
One objection that might be made to the formulation offered above is
that it might unduly burden federal law enforcement officers and
prosecutors, who would need to make judgment calls about when an
investigation has coalesced to the point where “victims” are in existence,
“substantial evidence” has been collected, and notice of rights has to be
provided. Any such objection would be ill-founded, though, as it does not
appear that implementing such an approach would be difficult. 200
Presumably the Justice Department has already been providing such rights
in at least Texas, Louisiana, and Mississippi to comply with the Fifth
197 See 18 U.S.C. §§ 2422(b), 2423(b), (e) (2012).
198 A more substantial summary of the case is available in case filings. See Jane Doe
Motion, supra note 40.
199 See supra Part II.
200 This Article does not discuss mass victim cases in which notice needs to be provided
to hundreds of victims. But in such situations, the CVRA already provides for “reasonable”
alternative procedures. 18 U.S.C. § 3771(d)(2) (2012). The Department of Justice, for
example, has used websites to provide notice in terrorism cases to large numbers of victims.
See, e.g., United States v. Ingrassia, No. CR-04-0455ADSJO, 2005 WL 2875220, at *4
(E.D.N.Y. Sept. 7, 2005); Criminal Division’s Victim Notification Program, U.S. DEP’T OF
JUSTICE, http://goo.gl/6H6IEk (last visited Dec. 4, 2013).
2014] CRIME VICTIMS’ RIGHTS 95
Circuit’s 2008 ruling in In Re Dean, which held that the CVRA extends
rights to victims before defendants are charged. 201 We have not seen any
reports that providing the rights has been difficult.
Perhaps the reason for the lack of any reported difficulty is that the
Department’s current policy on crime victims’ rights already requires
notices to victims during investigations. The Justice Department has
promulgated the Attorney General Guidelines for Victim and Witness
Assistance, the latest edition of which is from May 2012. The Guidelines
discuss crime victims’ rights under both the CVRA and the earlier VRRA.
Because of the OLC memorandum discussed above, the Guidelines limit
CVRA rights until after the time “when criminal proceedings are initiated
by complaint, information, or indictment.” 202 The Department, however,
provides hortatory guidance that Justice Department employees shall make
“best efforts” to notify crime victims about their CVRA rights “as early in
the criminal justice process as is feasible and appropriate.” 203
Of greater interest, however, is the Department’s mandatory policy
regarding notification regarding crime victim services under the VRRA.
The Guidelines explain how “Department responsibilities to crime victims
begin as soon as possible after the detection of a crime at which they may
be undertaken without interfering in the investigation.” 204 The Guidelines
then direct the appropriate “responsible official” to provide crime victims
with “information about services available to them.” 205 This information
must be provided at “the earliest opportunity after detection of a crime at
which it may be done without interfering with an investigation.” 206
The Department appears to have little difficulty implementing this
requirement. Evidence of this fact comes from the Justice Department
itself, which responded to the letter from Senator Kyl discussed earlier
questioning why the Department was not applying the CVRA before
charges were filed. 207 In its response, the Department noted that OLC had
issued an opinion that the CVRA did not extend rights before the formal
filing of charges. 208 “Even so,” the Department explained, “the new AG
Guidelines go further and provide that Department prosecutors should make
201 527 F.3d 391 (5th Cir. 2008).
202 ATTORNEY GENERAL GUIDELINES, supra note 52, at 8.
203 Id. at 35.
204 Id. at 26 (citing 42 U.S.C. § 10607(b) (2006)).
205 Id. at 29 (citing 42 U.S.C. § 10607(b)(2)). Elsewhere, the Guidelines define the
official who is responsible as the appropriate federal law enforcement officer during the
investigation of the crime or the U.S. Attorney once charges have been filed. Id. at 25–26.
206 Id. at 29.
207 See supra notes 130–33 and accompanying text.
208 Letter from Ronald Weich, supra note 135, at 2.
96 CASSELL ET AL. [Vol. 104
reasonable efforts to notify identified victims of, and consider victims’
views about, prospective plea negotiations, even prior to the filing of a
charging instrument with the court.” 209
The Department also noted that it provided extensive pre-charging
notifications to victims under the VRRA:
Pursuant to the Victims’ Rights and Restitution Act of 1990 (VRRA), the Department
identifies victims and provides to them service referrals, reasonable protection, notice
concerning the status of the investigation, and information about the criminal justice
process prior to the filing of any charges. The Department’s investigative agencies
provide such services to thousands of victims every year, whether or not the
investigation results in a federal prosecution. 210
Quantifying the scope of this undertaking with regard to one federal
investigative agency, the Department explained:
[T]he [FBI] alone reports that it provided more than 190,000 services to victims
during the past fiscal year [FY 2011], including case status updates, assistance with
compensation applications and referrals, and counseling referrals. From sexual
assaults in Indian Country to child pornography and human trafficking to mass
violence and overseas terrorism, FBI victim specialists provide much-needed
immediate and ongoing support and information to victims. The FBI addresses victim
safety issues when needed, providing on-scene response and crisis intervention
services in thousands of investigations. With regard to sexual assault victims, FBI
personnel arrange for and often accompany victims to forensic sexual assault medical
examinations and provide assistance with HIV/STD testing. 211
In view of the Department’s existing notifications and provision of
services before charges are filed under the VRRA, it is hard to conceive
how any viable claim could be made that it would be difficult to provide
similar rights under the CVRA. The four rights that would be potentially in
play before charging would be the right to reasonable protection, the right
to fair treatment, and the right to confer with prosecutors, along with the
predicate right to notice of these rights. 212 The VRRA already requires the
Department to provide reasonable protection, so this would not be an
expanded obligation. 213 Similarly, the Guidelines already require
prosecutors to confer with victims about plea agreements (the most
common situation where victims want to confer), so it is hard to imagine
how extending this right would create any undue burden. 214 Additionally,
the right to “fair treatment” could only be a problem if the Department
209 Id.
210 Id. at 2–3.
211 Id. at 3.
212 18 U.S.C. § 3771(a)(1), (5), (8), (c)(1) (2012).
213 See 42 U.S.C. § 10607(c)(2) (2006).
214 See ATTORNEY GENERAL GUIDELINES, supra note 52, at 41–42.
2014] CRIME VICTIMS’ RIGHTS 97
wanted to treat victims unfairly. Given its repeated and professed
commitment to crime victims, here too this obligation should not be
burdensome. And finally, with regard to providing notice of CVRA rights
to victims, the fact that the Department currently provides notice of VRRA
rights indicates that it should not be difficult to provide notice of CVRA
rights as well.
Indeed, it is possible that the Department’s notification letters under
the VRRA already include this information. Interestingly, in the Epstein
case, the FBI notified Jane Doe Number One and Jane Doe Number Two
that they had rights in the criminal justice process. As early as June 7,
2007—more than three months before it concluded a nonprosecution
agreement with Epstein—the U.S. Attorney’s Office sent a notice to Jane
Doe Number One stating “your case is under investigation.” 215 The notice
also informed Jane Doe Number One that “as a victim and/or witness of a
federal offense, you have a number of rights.” 216 Among the rights that the
U.S. Attorney’s Office told Jane Doe that she possessed was “[t]he
reasonable right to confer with the attorney for the United States in the
case.” 217 Of course, she would not have had those rights if she was not
covered by the CVRA. The FBI therefore apparently assumed that the
CVRA already applied in the Epstein case. It was only later, when the
matter went into litigation, that the Department of Justice reversed course.
This change in course underscores the problems arising out of the OLC
memorandum and the Department’s current interpretation of the CVRA.
D. STATE LAW EXTENSION OF PRE-CHARGING RIGHTS
The focus of this Article so far has been crime victims’ rights in the
federal system. But in concluding, it is instructive to note how a number of
states offer parallel rights for crime victims, including the right to confer
with prosecutors. In fact, several states have extended such rights prior to
formally filing of charges against defendants—without reported difficulty,
so far as we are aware. This confirms our inference that extending CVRA
rights to crime victims before the formal filing of criminal charges is both
feasible and desirable.
A general overview of state laws illustrates the broad protections
afforded to victims in state criminal justice systems. Nearly two-thirds of
states have adopted constitutional provisions to protect victims throughout
215 Letter from A. Marie Villafaña, Assistant U.S. Att’y, to Jane Doe #1 (June 7, 2007),
reprinted in Jane Doe Motion, supra note 40, at ex. C.
216 Id.
217 Id.
98 CASSELL ET AL. [Vol. 104
the criminal justice process. 218 Moreover, every state has adopted a statute
that either enforces its constitutional amendment or creates independent
statutory rights for crime victims. 219 As a result, state legislatures and state
employees have attempted to give victims a voice in the criminal justice
process across the country.
Notably, while the strength of these rights varies from state to state, 220
nearly forty states require the prosecuting attorney to notify or confer with
the victim regarding plea negotiations. 221 Several jurisdictions involve the
victim in the charging decision. 222 In some states, law enforcement and
prosecutors must involve the victim at any “critical” 223 or “crucial” 224 stage
of the criminal proceeding; and in a minority of jurisdictions, the judge
must ascertain whether the prosecutor has afforded the victim statutory
protections prior to accepting a plea agreement. 225
The general contours of state provisions suggest that several state
governments have recognized the value in informing victims of their rights
and involving them in the criminal process prior to the formal filing of
charges. 226 Indeed, a brief look at the statutory protections illustrates the
extent to which states have attempted to afford protections to victims long
before the formal filing of charges.
218 See Victims’ Rights Laws by State, NAT’L CRIME VICTIM L. INST. (Oct. 17, 2013),
http://goo.gl/pdDx1w (listing and linking to state laws and constitutional amendments).
219 See LAFAVE ET AL., supra note 168, § 21.3(f), at 1041–42.
220 See generally DEAN G. KILPATRICK ET AL., NAT’L INST. OF JUSTICE, U.S. DEP’T OF
JUSTICE, THE RIGHTS OF CRIME VICTIMS—DOES LEGAL PROTECTION MAKE A DIFFERENCE?
(1998), available at http://goo.gl/EzH61S.
221 See Peggy M. Tobolowsky, Victim Participation in the Criminal Justice Process:
Fifteen Years After the President’s Task Force on Victims of Crime, 25 NEW ENG. J. ON
CRIM. & CIV. CONFINEMENT 21, 64 & n.168 (1999) (citing to victims’ rights statutes in
Connecticut, Illinois, and Michigan, among others). Unfortunately, as some commentators
have noted, the notice and conferral provisions in some states are ambiguous, and the
absence of case law precludes a definitive understanding of the reach of the right in some
jurisdictions. See LAFAVE ET AL., supra note 168, § 21.3(f), at 1041–42; see also, e.g., KAN.
STAT. ANN. § 74-7333(a)(5) (2002) (“The views and concerns of victims should be
ascertained and the appropriate assistance provided throughout the criminal process.”). In
some jurisdictions, the ambiguous use of an illustrative list could be read as suggesting that a
particular right, such as conferral, hinges on formal charges. See, e.g., KY. REV. STAT. ANN.
§ 421.500(6) (LexisNexis Supp. 2012) (requiring consultation on “disposition of the case
including dismissal, release of defendant pending judicial proceedings, any conditions of
release, a negotiated plea, and entry into a pretrial diversion program,” but failing to define
“disposition” or “case”).
222 See Tobolowsky, supra note 221, at 59–60.
223 E.g., LA. REV. STAT. ANN. §§ 46:1842(2), 46:1844(K) (2010).
224 E.g., FLA. CONST. art. I, § 16(b) (refraining from identifying the term).
225 See LAFAVE ET AL., supra note 168, § 21.3(f), at 1041.
226 See Victims’ Rights Laws by State, supra note 218.
2014] CRIME VICTIMS’ RIGHTS 99
For example, Arizona has adopted a constitutional amendment and
statutes that expansively protect victims. Under Arizona law, the definition
of victim hinges on whether a criminal offense has been committed, and the
term “criminal offense” is defined as “conduct that gives a peace officer or
prosecutor probable cause to believe” a crime has occurred. 227 In short, a
victim’s status does not hinge on the formal filing of charges but rather on
the criminal conduct itself. 228 Arizona law enforcement personnel must
give information to victims describing their rights as soon as possible, even
if formal charges have not yet been filed, and a victim may request that the
prosecutor discuss the disposition of the case, including “a decision not to
proceed with a criminal prosecution, dismissal, plea, or sentence
negotiations and pretrial diversion programs.” 229 A victim may even pursue
some rights if counts are dismissed. 230 Arizona courts have also permitted
victims to invoke their rights in the context of civil forfeiture
proceedings. 231
Hawaii’s victims’ rights statute illustrates how a state has defined the
term “case” more expansively than the limited definition advocated by the
Department in order to facilitate victim participation. By statute in Hawaii,
victims must, upon request, be informed of “major developments” in any
felony case. 232 Along a similar vein, the prosecuting attorney must consult
or advise the victim about any plea negotiations. 233 Interestingly, however,
the Hawaii legislature defined “major developments” as “arrest or release of
the suspect by the police, case deferral by the police, referral to the
prosecutor by the police, rejection of the case by the prosecutor, preliminary
hearing date, grand jury date, trial and sentencing dates, and the disposition
of the case.” 234 The usage of the term “case” and the plain language of the
provisions demonstrate that victims in the State of Hawaii are entitled to a
notification right and a possible consultation right long before formal
charges are filed.
227 ARIZ. REV. STAT. ANN. § 13-4401(6) (2010) (emphasis added); see State ex rel.
Thomas v. Klein, 150 P.3d 778, 780–81 (Ariz. Ct. App. 2007) (noting the original version
defined a criminal offense as a violation of a statute).
228 Under Arizona law, the “rights and duties that are established by this chapter arise on the
arrest or formal charging of the person or persons who are alleged to be responsible for a criminal
offence against a victim.” ARIZ. REV. STAT. ANN. § 13-4402(A) (2010) (emphasis added).
229 ARIZ. REV. STAT. ANN. § 13-4419(A) (2010).
230 See ARIZ. REV. STAT. ANN. § 13-4402.01(A).
231 It appears, however, that the criminal proceeding may have been parallel to the civil
forfeiture proceeding. See State v. Lee, 245 P.3d 919, 923–24 (Ariz. Ct. App. 2011).
232 HAW. REV. STAT. ANN. § 801D-4(a)(1) (LexisNexis 2007).
233 See id.
234 Id. § 801D-2.
100 CASSELL ET AL. [Vol. 104
Other states also expressly extend rights before the filing of charges.
Colorado guarantees rights at “all critical stages of the criminal justice
process[,]” which includes both the filing of charges and the decision to not
file charges. 235 In Missouri, victims have the right:
on charged cases or submitted cases where no charge decision has yet been made, to
be informed by the prosecuting attorney of the status of the case and of the availability
[of different forms of compensation and assistance] and of any final decision by the
prosecuting attorney not to file charges. 236
In New Jersey, officials typically send a letter informing the victim “that the
case has been referred to the prosecutors’ office and explains and offers the
services available from the country office of victim-witness advocacy.” 237
Subsequent letters to the victim ensure that the victim has notice of a series
of decisions long before indictment, 238 and the office actively solicits
information in order to “help the prosecutor’s office decide whether or not
to prosecute a case.” 239 Along a similar vein, the Massachusetts legislature
included a provision that makes it clear that nothing should prevent a
prosecutor from providing victim services to persons injured by the
commission of a crime, even though a complaint or indictment has not yet
been issued. 240
In addition to extending rights before the filing of charges, several
states require consultation before the prosecutor reaches a plea agreement
with the defendant. For example, Idaho’s statute provides that a victim
must be given an opportunity “to communicate with the prosecution in
criminal or juvenile offenses, and be advised of any proposed plea
agreement by the prosecuting attorney prior to entering into a plea
agreement in criminal or juvenile offenses involving crimes of violence, sex
235 COLO. CONST. art. II, § 16a; COLO. REV. STAT. § 24-4.1-302(1) (2013). But see COLO.
REV. STAT. § 24-4.1-302.5(1)(f) (2012) (limiting conferral right, in particular, to later stages
of a criminal proceeding). Despite these limitations on the conferral right, victims retain the
ability to be heard at any hearing involving a plea. See id. § 24-4.1-302.5.
236 MO. ANN. STAT. § 595.209(10) (West 2011).
237 OFFICE OF VICTIM-WITNESS ADVOCACY, N.J. DEP’T OF LAW & PUB. SAFETY, A CRIME
VICTIM’S GUIDE TO THE CRIMINAL JUSTICE SYSTEM 4 (2d ed. 1997); see also N.J. CONST. art. I,
§ 22. Compare 18 U.S.C. § 3771 (2012), with N.J. STAT. ANN. § 52:4B-36 (West 2009). In
addition to the rights similar to the federal legislation, New Jersey law provides for the right
“[t]o be advised of case progress and final disposition and to confer with the prosecutor’s
representative so that the victim may be kept adequately informed . . . .” Id. § 52:4B-36(k).
238 See OFFICE OF VICTIM-WITNESS ADVOCACY, supra note 237, at 4 (including pre-grand
jury remand, administrative dismissal, grand jury remand, grand jury dismissal, and
indictment returned).
239 Id. at 26 (describing victim involvement at grand jury and arraignment stages of the
proceeding).
240 See MASS. ANN. LAWS ch. 258B, § 2 (LexisNexis 2004).
2014] CRIME VICTIMS’ RIGHTS 101
crimes or crimes against children.” 241 In Indiana, the plain language of its
statute leaves open the possibility of a conferral right before formal charges
to the extent that the statute includes two separate time frames: “after a
crime . . . has been charged” or “before any disposition of a criminal case
involving the victim.” 242
To be sure, not all states have afforded victims a voice throughout the
entirety of the criminal justice process. 243 In some states, the statutes are
ambiguous. 244 In a handful of states, there is clear language limiting rights
until after the filing of charges. For example, Louisiana constrains the
conferral right to criminal matters “in which formal charges have been filed
by the district attorney’s office.” 245 Yet, unlike the federal CVRA, this
statute specifically excludes pre-charging situations. And, in any event,
despite Louisiana’s limitation on a particular right within the statute, the
legislature in this state still often saw fit to provide the victim with
notification rights, even in the absence of the formal filing of charges. 246
Very few state courts have ever considered the precise issue of
whether conferral rights may attach prior to the formal filing of charges.
This is likely caused by the fact that, unlike the federal statute, many state
statutes fail to provide the victim with a procedural mechanism for
challenging the conduct of prosecutors or law enforcement agencies. 247
However, in rare cases, state courts have implicitly recognized that a
meaningful interpretation of victims’ rights should include some rights prior
to filing.
For example, a Connecticut court concluded that a company injured by
the delinquent act of a minor was entitled to information about the case
241 IDAHO CODE ANN. § 19-5306(1)(f) (2004). As in the case of most of the state
statutes, the Idaho statute is not without ambiguity. A different provision within the statute
makes the notification right contingent “[u]pon the filing of a criminal complaint or juvenile
petition . . . .” Id. § 19-5306(2).
242 IND. CODE ANN. § 35-40-5-3(b) (West 2012); id. § 35-40-1-1 (failing to define “case”).
243 See, e.g., MD. CONST. art. 47(b) (“In a case originating by indictment or information
filed in a circuit court, a victim of crime shall have the right to be informed . . . .”).
244 In Delaware, for example, the statute contains an additional limitation in the conferral
provision that is noticeably absent from the duty imposed on law enforcement to provide
information about the victim’s rights to that victim. Compare DEL. CODE ANN. tit. 11,
§ 9405 (2007), and DEL. CODE ANN. tit. 11, § 9411 (2007) (imposing additional
requirements after the Attorney General commences the prosecution), with DEL. CODE ANN.
tit. 11, § 9410 (2007). Query whether the limitations imposed in one section should be
inferred in the other under the doctrine of expressio unius est exclusio alterius.
245 LA. REV. STAT. ANN. § 1844(D)(1) (2010).
246 See id. § 1844.
247 See generally Douglas E. Beloof, The Third Wave of Crime Victims’ Rights:
Standing, Remedy, and Review, 2005 BYU L. REV. 255, 300–23 (discussing problems with
remedies in victims’ rights statutes).
102 CASSELL ET AL. [Vol. 104
contained in a police file in a civil proceeding, even though it appears that
there was little indication that criminal charges had been filed. 248 Similarly,
the South Carolina Supreme Court, while limiting the ability of the victim
to challenge the conduct of a prosecutor, concluded that the same rights
under the state constitution must attach prior to the formal filing of an
indictment. 249 Other courts have even permitted a victim to recover
compensation or reparations for unindicted or acquitted conduct. 250
In other words, while few state judiciaries have addressed the precise
timing of state crime victims’ rights, those that have addressed the question
have typically found that the rights do extend to pre-charging situations.
Despite the relative dearth of state court cases, it is worth noting that
most state statutes unequivocally provide for notification rights early in the
criminal process. 251 For example, the Illinois statute imposes a limited duty
on law enforcement agencies to keep victims informed of the status of an
investigation until the accused is apprehended or the agency discontinues
the investigation. 252 Similarly, law enforcement agencies in Iowa must
keep the victim apprised of the investigation “until the alleged assailant is
apprehended or the investigation is closed.” 253 Michigan’s statute requires
law enforcement to provide information within a mere twenty-four hours of
contact between the agency and the victim. 254
In sum, while state law on crime victims’ rights before charging is not
fully developed, what law exists tends to support the position that crime
victims deserve rights before the formal filing of charges. This law fits the
long-standing trend in states toward expanding protections for crime
248 See In re James B., Jr., 714 A.2d 735 (Conn. Super. Ct. 1998).
249 See Ex parte Littlefield, 540 S.E.2d 81, 85 (S.C. 2000).
250 See Kimberly J. Winbush, Annotation, Persons or Entities Entitled to Restitution as
“Victim” Under State Criminal Restitution Statute, 92 A.L.R. 5TH 35, 35 (2001) (recounting
cases in which unnamed victims were entitled to restitution).
251 See, e.g., MINN. STAT. ANN. § 611A.0315(a) (West 2009) (requiring a prosecutor to
“make every reasonable effort to notify a victim of domestic assault . . . or harassment that
the prosecutor has decided to decline prosecution of the case” but providing the right to
participate in proceedings to circumstances in which the offender has been charged).
252 See 725 ILL. COMP. STAT. ANN. 120/4.5 (2008).
253 IOWA CODE ANN. § 915.13(1)(f) (West 2003).
254 See MICH. COMP. LAWS ANN. § 780.753 (West 2007). Michigan’s conferral right is
particularly ambiguous, because the notification requirement imposed upon the prosecuting
attorney contains a time limitation (after arraignment), but the legislature did not include an
express time limitation on the conferral right. See MICH. COMP. LAWS ANN. § 780.756(3)
(West 2007) (requiring the victim have the opportunity to consult prior to “any negotiation
that may result in a dismissal, plea or sentence bargain, or pretrial diversion”); see also MISS.
CODE ANN. § 99-43-7(1) (2007) (imposing a requirement on law enforcement officials to
notify a victim within seventy-two hours).
2014] CRIME VICTIMS’ RIGHTS 103
victims. 255 The decision by state legislators to extend notification or
conferral rights to crime victims demonstrates an express recognition that
crime victims’ meaningful participation in the criminal justice process may
involve granting those victims rights before indictment.
CONCLUSION
Crime victims have important rights at stake in the criminal justice
process, even before prosecutors formally file criminal charges. It is hardly
surprising, therefore, to find that a federal law that Congress in fact
designed to create “broad and encompassing” rights for victims protects
victims during a criminal investigation. As this Article has explained,
interpreting the CVRA to cover crime victims during the pre-charging
phase of a case is consistent with the statute’s purposes, text, legislative
history, and interpretive case law. And state criminal justice systems also
appear to be moving in that direction.
The Justice Department’s contrary interpretation seems unlikely to
prevail when challenged. The CVRA signals a paradigm shift in the way
that crime victims are to be treated, at least within the federal criminal
justice system. Before enactment of the law, federal investigators and
prosecutors might have been able to keep victims at arm’s length, refusing
to confer with them about the case and otherwise ignoring or even
mistreating them during the process. But those days are over. The CVRA
promises victims that they now have the right to confer with prosecutors
and the right to be treated fairly while their cases are investigated. It is time
for the Department of Justice to recognize and embrace that new reality.
255 See Jeffrey A. Parness et al., Monetary Recoveries for State Crime Victims, 58 CLEV.
ST. L. REV. 819, 850 (2010); Tobolowsky, supra note 221, at 59 (describing a “significant
expansion of victim rights to be consulted by the prosecutor and heard by the court”).
104 CASSELL ET AL. [Vol. 104