[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1749 Introduced in Senate (IS)]
1st Session
S. 1749
To amend the Federal Rules of Criminal Procedure to provide adequate
protection to the rights of crime victims, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 29, 2007
Mr. Kyl introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Federal Rules of Criminal Procedure to provide adequate
protection to the rights of crime victims, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; SENSE OF CONGRESS.
(a) Short Title.--This Act may be cited as the ``Crime Victims'
Rights Rules Act of 2007''.
(b) Sense of Congress Concerning Crime Victims' Representation in
the Federal Criminal Justice System.--
(1) Findings.--Congress finds that--
(A) the amendments made by title I of the Justice
for All Act of 2004 (Public Law 108-405; 118 Stat.
2261) afford a crime victim certain rights and standing
in court proceedings involving an offense against that
crime victim;
(B) the rights and standing afforded to crime
victims by those amendments are directly affected by
the Rules of Criminal Procedure, which govern the
administration of the Federal criminal justice system.
(C) the Judicial Conference of the United States,
as the principal body concerned with the administration
of United States courts and the recommendation of rules
of procedure, has an obligation to ensure that the
rights and standing of crime victims are accounted for
in the Federal criminal justice system.
(2) Sense of Congress.--It is the sense of Congress that
the Chief Justice of the United States, having sole authority
to appoint members of committees of the Judicial Conference of
the United States, should designate not fewer than 1 member on
each of the Committee on Rules of Practice and Procedure and
the Advisory Committee on Criminal Rules for the purpose of
ensuring that the rights and standing of crime victims are
accounted for in the Federal criminal justice system.
SEC. 2. DEFINITIONS.
Rule 1(b) of the Federal Rules of Criminal Procedure is amended by
adding at the end the following:
``(11) `Victim' means a person directly and proximately
harmed as a result of the commission of a Federal offense or an
offense in the District of Columbia. In the case of a crime
victim who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the crime
victim or the representative of the crime victim's estate,
family member, or any other person appointed as suitable by the
court, may assume the crime victim's rights under these rules,
but in no event shall the defendant be named as such guardian
or representative.''.
SEC. 3. INTERPRETATION.
Rule 2 of the Federal Rules of Criminal Procedure is amended by
inserting after ``administration'' the following: ``to the government,
the defendant, and the victim''.
SEC. 4. ARREST WARRANT OR SUMMONS ON A COMPLAINT.
Rule 4 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a), in the second sentence, by
inserting after ``a summons,'' the following: ``if consistent
with the right of the victim to be reasonably protected from
the accused,''; and
(2) in subdivision (c), by adding at the end the following:
``(5) Reasonable notice to the victim.--Upon return of an
executed warrant, the judge before whom the defendant is
brought shall direct that reasonable efforts be made to notify
the victim regarding the arrest and of the date, time, and
place of the initial appearance and of the right of the victim
to be heard at the initial appearance.''.
SEC. 5. INITIAL APPEARANCE.
Rule 5 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a)--
(A) by redesignating paragraph (3) as paragraph
(4); and
(B) by inserting after paragraph (2) the following:
``(3) Reasonable notice to the victim.--Reasonable efforts
shall be made to give notice to the victim of the date, time,
and place of the initial appearance and of the right of the
victim to be heard at the initial appearance.'';
(2) in subdivision (d)(3), by adding after the period at
the end the following: ``In making the decision to detain or
release the defendant, the judge shall consider the right of
the victim to be reasonably protected from the defendant and
shall make reasonable efforts to notify the victim if the
defendant is released and the conditions of such release.'';
and
(3) in subdivision (f), by inserting before the period at
the end the following: ``and reasonable efforts are made to
give the victim notice and the right to participate''.
SEC. 6. PRELIMINARY HEARING.
Rule 5.1 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a), in the matter preceding paragraph
(1), by inserting after ``a preliminary hearing'' the
following: ``, after making reasonable efforts to give notice
to the victim,''; and
(2) in subdivision (d), by inserting after ``prompt
disposition of criminal cases'' the following: ``and the right
of the victim to proceedings free from unreasonable delay''.
SEC. 7. ARREST WARRANT OR SUMMONS ON AN INDICTMENT OR INFORMATION.
Rule 9(c)(3) of the Federal Rules of Criminal Procedure is amended
by inserting before the period at the end the following: ``, after
making reasonable efforts to give notice to the victim''.
SEC. 8. REASONABLE NOTICE TO VICTIMS.
(a) In General.--The Federal Rules of Criminal Procedure are
amended by inserting after Rule 10 the following:
``Rule 10.1. Reasonable Notice to Victims
``(a) Identification of Victims.--During the prosecution of a case,
the attorney for the government shall at the earliest reasonable
opportunity, identify any victim.
``(b) Reasonable Notice of Case Events.--During the prosecution of
a crime, and whenever reasonable notice is required to be provided
under these rules, reasonable efforts shall be made to provide any
victim the earliest possible notice of--
``(1) the scheduling, including scheduling changes or
continuances, of each court proceeding that the victim is
either required to attend or entitled to attend;
``(2) the release or detention status of a defendant or
suspected offender;
``(3) the filing of charges against a defendant, or the
proposed dismissal of any charges, including the placement of
the defendant in a pretrial diversion program and the
conditions of such placement;
``(4) the right of the victim to make a statement about
pretrial release of the defendant;
``(5) the right of the victim to make a statement about
acceptance of a plea of guilty or nolo contendere;
``(6) the right of the victim to attend a public
proceeding;
``(7) if the defendant is convicted, the date and place set
for sentencing and the right of the victim to address the court
at sentencing; and
``(8) after the defendant is sentenced, the sentence
imposed and the availability of the Bureau of Prisons
notification program, which provides the date, if any, on which
the offender will be eligible for parole or supervised release.
``(c) Multiple Victims.--The attorney for the government shall
advise the court if the attorney believes that the number of victims
makes it impracticable to provide reasonable personal notice to each
victim. If the court finds that the number of victims makes it
impracticable to give reasonable personal notice to each victim, the
court shall fashion a reasonable procedure calculated to give
reasonable notice under the circumstances.''.
(b) Conforming Amendment.--The table of contents for the Federal
Rules of Criminal Procedure is amended by inserting after the item
relating to Rule 10 the following:
``10.1 Reasonable Notice to Victims.''.
SEC. 9. PLEAS.
Rule 11 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a)(3), by striking ``the parties'
views'' and inserting the following: ``the views of the parties
and victims'';
(2) in subdivision (b), by adding at the end the following:
``(4) Victim's 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 views of the victim in acting on
the proposed plea or withdrawal.''; and
(3) in subdivision (c)--
(A) in paragraph (1), in the matter preceding
subparagraph (A), by inserting after the second
sentence the following: ``The attorney for the
government shall make reasonable efforts to notify any
victim of, and consider the views of any victim about,
any proposed plea negotiations.''; and
(B) in paragraph (2), by adding at the end the
following: ``When a plea is presented in open court,
the attorney for the government or attorney for any
victim shall advise the court if the attorney is aware
that the victim has any objection to the proposed plea
agreement.''.
SEC. 10. PLEADINGS AND PRETRIAL MOTIONS.
Rule 12(g) of the Federal Rules of Criminal Procedure is amended by
adding at the end the following: ``The court shall make reasonable
efforts to notify the victim if the defendant is released under this
subdivision.''.
SEC. 11. DISCLOSURES.
(a) Alibi Defense.--
(1) In general.--Rule 12.1(b)(1)(A) of the Federal Rules of
Criminal Procedure is amended--
(A) by striking ``, address, and telephone
number''; and
(B) by inserting after ``each witness'' the
following: ``and the address and telephone number of
each witness (other than a victim) that''.
(2) Continuing duty to disclose.--Rule 12.1(c) of the
Federal Rules of Criminal Procedure is amended--
(A) by striking ``, address,'' and inserting ``of
each additional witness and the address''; and
(B) by inserting before ``if:'' the following:
``(other than a victim)''.
(b) Public Authority Defense.--
(1) In general.--Rule 12.3(a)(4)(C) of the Federal Rules of
Criminal Procedure is amended--
(A) by striking ``, address, and telephone
number''; and
(B) by inserting after ``each witness'' the
following: ``, and the address and telephone number of
each witness (other than a victim), that''.
(2) Continuing duty to disclose.--Rule 12.3(b) of the
Federal Rules of Criminal Procedure is amended--
(A) by striking ``, address,'' and inserting the
following: ``of any additional witness and the
address''; and
(B) inserting before ``if:'' the following:
``(other than a victim)''.
SEC. 12. DEPOSITIONS.
Rule 15 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a)(1), in the first sentence, by
inserting ``, other than a victim,'' after ``a prospective
witness''; and
(2) by adding at the end the following:
``(i) Victim Attendance.--A victim may attend any public deposition
taken under this Rule.''.
SEC. 13. DISCOVERY AND INSPECTION.
Rule 16(a) of the Federal Rules of Criminal Procedure is amended by
adding at the end the following:
``(4) Disclosure to victims.--The government may disclose
to a victim any information that the government has disclosed
to the defendant.''.
SEC. 14. SUBPOENAS.
Rule 17(h) of the Federal Rules of Criminal Procedure is amended--
(1) by striking ``No party'' and inserting the following:
``(1) In general.--No party''; and
(2) by adding at the end the following:
``(2) Victims.--No record or document containing personal
or confidential information about a victim may be subpoenaed
without making reasonable efforts to give notice to the victim,
given through the attorney for the government or for the
victim, and an opportunity to be heard.''.
SEC. 15. PRETRIAL CONFERENCE.
Rule 17.1 of the Federal Rules of Criminal Procedure is amended by
adding at the end the following: ``The court shall make reasonable
efforts to give the victim notice of any pretrial conference and a
victim may attend and be heard on any matter relating to the rights of
a victim.''.
SEC. 16. VENUE.
(a) In General.--The second sentence of Rule 18 of the Federal
Rules of Criminal Procedure is amended by inserting after ``the
defendant'' the following: ``, the victim,''.
(b) Plea and Sentence.--Rule 20(a)(2) of the Federal Rules of
Criminal Procedure is amended by inserting before the period at the end
the following: ``, after consultation with the victim''.
(c) Juveniles.--Rule 20(d)(1)(E) of the Federal Rules of Criminal
Procedure is amended by inserting before the semicolon the following:
``, after consultation with the victim''.
(d) Transfer for Trial.--Rule 21 of the Federal Rules of Criminal
Procedure is amended by adding at the end the following:
``(e) Victims' Views.--The court shall not transfer any proceeding
without giving any victim an opportunity to be heard. The court shall
consider the views of the victim in making any transfer decision.''.
SEC. 17. TRIAL.
Rule 23(a)(3) of the Federal Rules of Criminal Procedure is amended
by inserting before the period at the end the following: ``, after
considering the views of the victim''.
SEC. 18. INTERPRETERS.
Rule 28 of the Federal Rules of Criminal Procedure is amended in
the first sentence, by inserting before the period at the end the
following: ``, including an interpreter for the victim''.
SEC. 19. POST CONVICTION PROCEDURES.
(a) Presentence Investigation.--Rule 32(c) of the Federal Rules of
Criminal Procedure is amended--
(1) in paragraph (1)(B), by striking ``requires'' and
inserting ``permits''; and
(2) by adding at the end the following:
``(3) Victim information.--The probation officer shall
determine whether any victim wishes to provide information for
the presentence report.''.
(b) Presentence Report.--Rule 32 of the Federal Rules of Criminal
Procedure is amended--
(1) in subdivision (d)--
(A) in paragraph (2)--
(i) in subparagraph (E), by striking
``and'' at the end;
(ii) by redesignating subparagraph (F) as
subparagraph (G); and
(iii) by inserting after subparagraph (E)
the following:
``(F) a description of the impact of the crime on
the victim; and''; and
(B) in paragraph (3)(C), by inserting ``, the
victim,'' after ``the defendant'';
(2) in subdivision (e)(2)--
(A) by striking ``The probation officer'' and
inserting the following:
``(A) In general.--The probation officer''; and
(B) by adding at the end the following:
``(B) Victims.--The probation officer must give the
presentence report to the victim and any attorney for
such victim at least 35 days before sentencing, unless
the court, after receiving an objection from the
defendant, the attorney for the government, or another
victim, finds that disclosure of a portion of the
report would be an unwarranted invasion of personal
privacy and not in the interest of justice, in which
case such portions shall be redeacted.''; and
(3) in subdivision (f)(1), by adding at the end the
following: ``The attorney for the government or for the victim
shall raise for the victim any reasonable objection by the
victim to the presentence report.''.
(c) Departures.--Rule 32(h) of the Federal Rules of Criminal
Procedure is amended by--
(1) striking ``or in a party's prehearing submission'' and
inserting ``, in a party's prehearing submission, or in a
victim impact statement''; and
(2) adding at the end the following ``The attorney for the
government or the victim shall advise defense counsel and the
court of any ground identified by the victim that might
reasonably serve as a basis for departure.''.
(d) Sentencing.--Rule 32(i) of the Federal Rules of Criminal
Procedure is amended--
(1) in paragraph (1)(C), by inserting after ``parties'
attorneys'' the following: ``and any victim'';
(2) in paragraph (1)(D), by inserting after ``allow a
party'' the following: ``or a victim'';
(3) in paragraph (2), in the first sentence, by inserting
after ``permit the parties'' the following: ``or the victim'';
and
(4) by amending subparagraph (B) of paragraph (4) to read
as follows:
``(B) By a victim.--Before imposing sentence, the
court must address any victim of the crime who is
present at sentencing and must permit the victim to
speak or submit any information about the sentence.''.
(e) Definitions.--Rule 32 of the Federal Rules of Criminal
Procedure is amended by--
(1) striking subdivision (a);
(2) redesignating subdivisions (b) through (k) as
subdivisions (a) through (j) respectively;
(f) Conforming Amendments.--
(1) Rule 26.--Rule 26.2(g)(2) of the Federal Rules of
Criminal Procedure is amended by striking ``Rule 32(i)(2)'' and
inserting ``Rule 32(h)(2)''.
(2) Rule 32.--Rule 32(h) of the Federal Rules of Criminal
Procedure, as so redesignated by subsection (e), is amended--
(A) in paragraph (1)(B), by striking ``Rule
32(d)(3)'' and inserting ``Rule 32(c)(3)''; and
(B) in paragraph (4)(C), by striking ``Rule
32(i)(4)'' and inserting ``Rule 32(h)(4)''.
(3) Copyright.--Section 2319(d)(1) of title 18, United
States Code, is amended by striking ``Rule 32(c)'' and
inserting ``Rule 32(b)''.
(4) Recordings.--Section 2319A(d)(1) of title 18, United
States Code, is amended by striking ``Rule 32(c)'' and
inserting ``Rule 32(b)''.
(5) Counterfeit goods or services.--Section 2320(d)(1) of
title 18, United States Code, is amended by striking ``Rule
32(c)'' and inserting ``Rule 32(b)''.
(6) Children.--Section 3509(f) of title 18, United States
Code, is amended by striking ``Rule 32(c)'' and inserting
``Rule 32(b)''.
(7) Presentence reports.--Section 3552 of title 18, United
States Code, is amended--
(A) in subsection (a), by striking ``Rule 32(c)''
and inserting ``Rule 32(b)''; and
(B) in subsection (d)--
(i) by striking ``The court shall assure
that'' and inserting the following:
``(1) In general.--The court shall assure that''; and
(ii) by adding at the end the following:
``(2) Crime victims.--The court shall assure that, not
later than 10 days before the date of sentencing, the report
filed under this section is disclosed to any crime victim (as
that term is defined in section 3771(e)) and any attorney for
such crime victim, except any portion of such report excised by
the court for compelling reasons or made confidential by law.
If the court excises any portion of the presentence report, it
shall inform the parties and the victim of its decision and
shall state on the record the reasons for the excision.''.
(8) Probation.--Section 3664(c) of title 18, United States
Code, is amended by striking ``Rule 32(c)'' and inserting
``Rule 32(b)''.
SEC. 20. REVOKING OR MODIFYING PROBATION OR SUPERVISED RELEASE.
Rule 32.1 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a)--
(A) in paragraph (1), in the matter preceding
subparagraph (A), by inserting after ``must be taken''
the following: ``, with reasonable efforts to give
notice to the victim and''; and
(B) in paragraph (6), by striking ``The
magistrate'' and inserting the following: ``After
considering the right of the victim to be reasonably
protected, the magistrate''; and
(2) in subdivision (b), by adding at the end the following:
``(3) Crime victims.--The court shall make reasonable
efforts to give notice to the victim before any revocation
hearing.''.
SEC. 21. NEW TRIAL.
Rule 33(a) of the Federal Rules of Criminal Procedure is amended in
the first sentence by inserting after ``Upon the defendant's motion''
the following: ``and after making reasonable efforts to give notice to
the victim and an opportunity for the victim to be heard''.
SEC. 22. ARRESTING JUDGMENT.
Rule 34(a) of the Federal Rules of Criminal Procedure is amended in
the matter preceding paragraph (1), by inserting after ``must arrest
judgment'' the following: ``, after making reasonable efforts to give
notice to the victim and an opportunity to be heard,''.
SEC. 23. CORRECTING OR REDUCING A SENTENCE.
Rule 35 of the Federal Rules of Criminal Procedure is amended--
(1) in subdivision (a), by inserting after ``the court''
the following: ``, after making reasonable efforts to give
notice to the victim and an opportunity to be heard,''; and
(2) in subdivision (b), by inserting ``, after making
reasonable efforts to give notice to the victim and an
opportunity to be heard,'' after ``may reduce a sentence'' each
place the term appears.
SEC. 24. CLERICAL ERROR.
Rule 36 of the Federal Rules of Criminal Procedure is amended by
inserting after ``it considers appropriate,'' the following:
``including making reasonable efforts to give notice to the victim,''.
SEC. 25. STAYING A SENTENCE OR A DISABILITY.
Rule 38(e)(1) of the Federal Rules of Criminal Procedure is amended
by inserting before the period at the end the following: ``, after
making reasonable efforts to give notice to the victim and an
opportunity to be heard''.
SEC. 26. VICTIM'S PRESENCE.
(a) In General.--The Federal Rules of Criminal Procedure are
amended by inserting after Rule 43 the following:
``Rule 43.1 Victim's Presence
``(a) Victim's Right To Attend.--A victim has the right to attend
any public court proceeding, unless the court, based on clear and
convincing evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that
proceeding. Before making any determination to exclude a victim, the
court shall make every effort to permit the fullest attendance possible
by the victim and shall consider reasonable alternatives to the
exclusion of the victim from the criminal proceeding. The reasons for
any decision to exclude a victim shall be clearly stated on the record.
``(b) Proceeding With and Without Reasonable Notice.--
``(1) Without victim.--The court may hold a public
proceeding without the attendance of a victim if reasonable
efforts have been made to give notice to that victim under Rule
10.1.
``(2) Without notice.--The court may hold a public
proceeding (other than a trial or sentencing) without proper
notice to a victim only if--
``(A) doing so is in the interests of justice;
``(B) the court makes reasonable efforts to provide
prompt notice to that victim of the court's action and
of the victim's right to seek reconsideration of the
action if a victim's right is affected; and
``(C) the court makes reasonable efforts to insure
that notice will be properly provided to that victim
for all subsequent public proceedings.
``(c) Numerous Victims.--If the court finds that the number of
victims makes it impracticable to afford all of the victims the right
to be present, the court shall fashion a reasonable procedure to
facilitate the attendance of the victims.
``(d) Right To Be Heard on Victim's Issues.--In addition to any
right to be heard established elsewhere under these rules, at any
public proceeding at which a victim has the right to attend, the victim
has the right to be heard on any matter affecting the rights of a
victim.''.
(b) Conforming Amendment.--The table of contents for the Federal
Rules of Criminal Procedure is amended by inserting after the item
relating to Rule 43 the following:
``43.1 Victim's Presence.''.
SEC. 27. COUNSEL FOR VICTIMS.
Rule 44 of the Federal Rules of Criminal Procedure is amended by
adding at the end the following:
``(d) Counsel for Victims.--When the interests of justice clearly
require, the court may appoint counsel for a victim to assist the
victim in exercising the rights of the victim under these rules or any
other provision of Federal law.''.
SEC. 28. RIGHT TO BE HEARD.
Rule 46 of the Federal Rules of Criminal Procedure is amended by
adding at the end the following:
``(k) Victim's Right To Be Heard.--A victim has the right to be
heard regarding any decision to release the defendant. The court shall
consider the views of the victim and the right of the victim to be
reasonably protected from the defendant in making any release decision,
including such decisions in petty cases. In a case where the court
finds that the number of victims makes it impracticable to afford all
of the victims the right to be heard in open court, the court shall
fashion a reasonable procedure to facilitate hearing from
representative victims.''.
SEC. 29. MOTIONS AND SUPPORTING AFFIDAVITS.
Rule 47(b) of the Federal Rules of Criminal Procedure is amended by
adding at the end the following: ``In deciding whether to grant the
government's motion to dismiss, the court shall consider the views of
the victim.''.
SEC. 30. SERVING AND FILING PAPERS.
Rule 49(a) of the Federal Rules of Criminal Procedure is amended by
inserting after ``on every other party'' the following: ``, and on the
victim or any counsel for a victim who has entered a notice of
appearance,''.
SEC. 31. PROMPT DISPOSITION.
Rule 50 of the Federal Rules of Criminal Procedure is amended to
read as follows:
``Rule 50. Prompt Disposition
``(a) Scheduling Preference.--Scheduling preference shall be given
to criminal proceedings as far as is practicable.
``(b) Defendant's Right Against Delay.--The court shall assure that
the right of the defendant to a speedy trial is protected, as provided
by the Speedy Trial Act of 1974 (18 U.S.C. 3161 note).
``(c) Victim's Right Against Delay.--The court shall assure that
the right of the victim to proceedings free from unreasonable delay is
protected. The victim has the right to be heard regarding any motion to
continue any proceeding. If the court grants a motion to continue over
the objection of the victim, the court shall state its reasons in
writing.''.
SEC. 32. PRESERVING CLAIMED ERROR.
Rule 51(b) of the Federal Rules of Criminal Procedure is amended--
(1) in the first sentence, by inserting after ``A party''
the following: ``or a victim''; and
(2) in the second sentence, by inserting after ``If a
party'' the following: ``or a victim''.
SEC. 33. DIRECTION TO SENTENCING COMMISSION.
The United States Sentencing Commission is directed to make
appropriate amendments to sentencing guidelines, policy statements, and
official commentary to ensure that crime victims have meaningful
participation in the sentencing process.
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