104 J. Crim. L. & Criminology 59

CRIMINAL LAW: CRIME VICTIMS' RIGHTS DURING CRIMINAL INVESTIGATIONS? APPLYING THE CRIME VICTIMS’ RIGHTS ACT BEFORE CRIMINAL CHARGES ARE FILED Winter, 2014 Reporter 104 J. Crim. L. & Criminology 59 * Length: 23898 words Author: PAUL G. CASSELL*, NATHANAEL J. MITCHELL** and BRADLEY J. EDWARDS*** * 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. Highlight 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 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. Text DAVID SCHOEN HOUSE_OVERSIGHT_017604