2007 Utah L. Rev. 861, *885

Page 18 of 78 2007 Utah L. Rev. 861, *885 remains what the court should do with the victim's statement. Currently Rule 11(a)() specifies that the court must consider "the parties views on a nolo plea - but it makes no mention of the victim's views. !4? The CVRA now mandates that victims must be "reasonably heard" at any proceeding involving a "plea." !>° It is hard to see how anyone could argue that a victim is reasonably heard when, after making a [*886] statement about the nolo plea, the court is not required to even consider it. The rule should be amended to require courts to consider victims’ statements. Rule 11(b)(4) - Victims’ Right To Be Heard on Pleas The Proposals: I proposed that the court should be required to address any victim present when a plea is taken to determine whether the victim wishes to make a statement and to consider the victim's view before accepting a plea, as follows: Victims’ Views. Before the court accepts a plea of guilty or nolo contendere or allows any plea to be withdrawn, the court must address any victim who is present personally in open court. During this address, the court must determine whether the victim wishes to present views regarding the proposed plea or withdrawal and, if so, what those views are. The court shall consider the victim's views in acting on the proposed plea or withdrawal. !*! The Advisory Committee recommended no change to Rule 11. 1°? Discussion: It is hard to understand why the Advisory Committee declined to recommend changing Rule 11 to require that victims be addressed, as it did not discuss the idea. '*3 If the Advisory Committee deliberately rejected this idea, it has given no explanation and it is hard to see any justification for the Advisory Committee's position. The CVRA gives victims "the right to be reasonably heard at any public proceeding in the district court involving ... [a] plea." '*4 To implement the victim's right to be heard regarding a plea, my proposed rule change merely required the court to directly address any victim who is present in court and to consider any views the victim expressed. This is consistent with the CVRA's legislative history which explains that "this provision is intended to allow crime victims to directly address the court in person." !5> The language of the proposed rule is lifted from an earlier paragraph in Rule 11, which requires the court "before accepting a plea of guilty" to "address the defendant personally in open court." !*° Victims should be treated evenhandedly with defendants. It may also be important for the judge to address victims directly because many victims will lack [*887] the assistance of counsel. Untrained in legal proceedings, victims may be uncertain about exactly when in the process they should present their views. Having the court address the victim will eliminate that uncertainty and ensure that the victim's right to be heard is vindicated. The Advisory Committee's "global" rule on victims’ rights (Rule 60) does briefly address pleas. Tracking language in the CVRA, the Advisory Committee would require the court to "permit a victim to be reasonably heard at any public proceeding ... 49 The rule does mention that the court must consider "the public interest in the effective administration of justice" in reviewing a nolo plea. See Fed. R. Crim. P. 11 (a)(3). But this broad phrase does not appear to encompass the views of particular actors regarding a plea, as made clear by the fact that the rule separately lists "the parties' views" as something the court must consider. 50 18 U.S.C. § 3771(a)(4) (2006). 5! Cassell, Proposed Amendments, supra note 4, at 866. *2 Proposed Amendments, supra note 71. 53 See supra note 145-147 and accompanying text (noting the absence of any mention of my Rule 11 proposals as those the subcommittee rejected). 54 18 U.S.C § 3771(a)(4). 55 150 Cong. Rec. $4268 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl). 56 Bed. R. Crim. P. 11(b)(2). DAVID SCHOEN HOUSE_OVERSIGHT_017653