    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

           PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED
                    STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                       ON

                                 H.J. Res. 106

                                   ----------

                                 APRIL 26, 2012

                                   ----------

                               Serial No. 112-113

                                   ----------

             Printed for the use of the Committee on the Judiciary

       Available via the World Wide Web: http://judiciary.house.govFOR
                                   SPINE deg.

                                   ----------
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    73-966 PDF                       WASHINGTON : 2012

    For sale by the Superintendent of Documents, U.S. Government Printing
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        PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
                     TO PROTECT THE RIGHTS OF CRIME VICTIMS

      PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
                      PROTECT THE RIGHTS OF CRIME VICTIMS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                       ON

                                 H.J. Res. 106

                                   __________

                                 APRIL 26, 2012

                                   __________

                               Serial No. 112-113

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                           COMMITTEE ON THE JUDICIARY

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
    TOM MARINO, Pennsylvania             JARED POLIS, Colorado
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona
    MARK AMODEI, Nevada

               Richard Hertling, Staff Director and Chief Counsel
           Perry Apelbaum, Minority Staff Director and Chief Counsel
                                     ------

                        Subcommittee on the Constitution

                        TRENT FRANKS, Arizona, Chairman

                       MIKE PENCE, Indiana, Vice-Chairman

    STEVE CHABOT, Ohio                   JERROLD NADLER, New York
    J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
    STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
    JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT,
                                         Virginia

                         Paul B. Taylor, Chief Counsel

                    David Lachmann, Minority Staff Director

                                C O N T E N T S

                                  ----------

                                 APRIL 26, 2012

                                                                       Page

                                 THE RESOLUTION

    H.J. Res. 106, Proposing an amendment to the Constitution of the
      United States to protect the rights of crime victims...........     2

                               OPENING STATEMENTS

    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Chairman, Subcommittee on the
      Constitution...................................................     1
    The Honorable Mike Quigley, a Representative in Congress from the
      State of Illinois, and Member, Subcommittee on the Constitution    54

                                   WITNESSES

    Brooks Douglass, Carrollton, TX
      Oral Testimony.................................................    56
      Prepared Statement.............................................    58
    Jesselyn McCurdy, Senior Legislative Counsel, American Civil
      Liberties Union
      Oral Testimony.................................................    66
      Prepared Statement.............................................    68
    Paul G. Cassell, Ronald N. Boyce Presidential Professor of
      Criminal Law, S.J. Quinney College of Law at the University of
      Utah
      Oral Testimony.................................................    77
      Prepared Statement.............................................    80

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution
        Letter from Jan Scully, President, National District
          Attorneys Association......................................     7
        Letters from crime victims' organizations and families of
          crime victims..............................................     8

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Supplement to the Testimony of Paul G. Cassell, Ronald N. Boyce
      Presidential Professor of Criminal Law, S.J. Quinney College of
      Law at the University of Utah..................................   202
    Material submitted by the Honorable Trent Franks, a
      Representative in Congress from the State of Arizona, and
      Chairman, Subcommittee on the Constitution.....................   207

      PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO
                      PROTECT THE RIGHTS OF CRIME VICTIMS

                                  ----------

                            THURSDAY, APRIL 26, 2012

                      House of Representatives,
                      Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to call, at 2:30 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Trent
    Franks (Chairman of the Subcommittee) presiding.
        Present: Representatives Franks, Scott and Quigley.
        Staff Present: (Majority) Jacki Pick, Counsel; Sarah Vance,
    Clerk; (Minority) David Lachmann, Subcommittee Staff Director;
    and Veronica Eligan, Professional Staff Member.
        Mr. Franks. First, let me just say thank you to all of you
    for your patience. We had to vote on the floor, which slowed us
    down. It has been the proverbial train wreck in slow motion. So
    thank you for your patience.
        Today the Subcommittee on the Constitution examines H.J.
    Res. 106, the bipartisan victims' rights amendment to the
    Constitution, also sometimes called the VRA.
        [The information referred to follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. Franks. Without objection, the Chair is authorized to
    declare a recess of the Committee at any time and he may have
    to do that in this case for a few moments.
        Victims' rights legislation and amendments have enjoyed
    broad support at the State and Federal levels, passing by 80
    percent margins in the States and securing influential
    bipartisan support at the highest levels of the Federal
    Government. Senators Kyl and Feinstein have championed victims'
    rights in the Senate, and multiple House and Senate hearings
    have been devoted to advancing victims' rights.
        Despite the best efforts of the State and Federal level to
    bring balance through statutes or State constitutional
    amendments, these efforts have been proven to be inadequate
    whenever they come into conflict with bureaucratic habit,
    traditional indifference, sheer inertia, or the mere mention of
    accused's rights, even when those rights are not genuinely
    threatened.
        As the U.S. Justice Department concluded after careful
    review of the issue, the existing, quote, ``haphazard patchwork
    of rules'' is, quote, ``not sufficiently consistent,
    comprehensive, or authoritative to safeguard victims' rights.''
    The VRA would specifically enumerate rights for crime victims,
    including the right to fairness, respect, and dignity; the
    right to reasonable notice of and not to be excluded from
    public proceedings related to the offense; the right to be
    heard at any release, plea, sentencing, or other such
    proceeding involving any right established in the amendment;
    the right to proceedings free from unreasonable delay; the
    right to reasonable notice of the release or escape of the
    accused; the right to due consideration of the crime victim's
    safety; and the right to restitution. Moreover, the amendment
    expressly provides standing for the victim to enforce
    enumerated rights.
        Supporters of a victims' rights amendment have included
    President George W. Bush, President Bill Clinton, and President
    H.W. Bush, George H.W. Bush; Attorneys General Janet Reno, John
    Ashcroft, and Alberto Gonzales; Professor Larry Tribe of the
    Harvard Law School; the National Governors' Association; 50
    State attorneys general; Mothers Against Drunk Driving; the
    National Association of Parents of Murdered Children; the
    National Organization for Victims' Assistance; and finally, the
    National District Attorneys Association, the voice of the
    Nation's prosecutors.
        And on this point I find it ironic that the Democratic-
    invited witness from the ACLU claims to speak on behalf of
    Nation's prosecutors when she writes in her testimony that
    prosecutorial discretion would be compromised by this
    amendment, and that prosecutors would become less able to
    convict criminals; that their right to be heard hurts the
    effort of prosecutors and the cause of victims. In fact, the
    National District Attorneys Association sent us letters just
    this week saying just the opposite. And I will quote their
    letter.
        Quote: The National District Attorneys Association,
    representing America's prosecutors, wishes to express strong
    support for H.J.Res. 106, the victims' rights amendment.
    Inclusion of victims' rights in our U.S. Constitution will
    ensure that victims' rights and crime victims will be treated
    with fairness, dignity, and respect within our criminal justice
    system, and if within that system, they will be afforded needed
    and meaningful rights, including the opportunity to participate
    at all critical stages of their cases. Inasmuch as America's
    prosecutors are the staunchest advocates for victims within our
    criminal justice system, we are proud to advocate on their
    behalf within the halls of Congress. We call upon this Congress
    to pass the amendment and the States to ratify it, unquote.
        Now I would ask unanimous consent to enter this letter from
    the NDAA into the record. Without objection.
        [The information referred to follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________

        Mr. Franks. In addition, my office has received more than
    30 letters from crime victims' organizations and the families
    of crime victims, which we will add to the hearing as well--the
    record as well.
        [The information referred to follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                   __________
        Mr. Franks. I would look forward to hearing from the
    witnesses today on this critical issue, and I thank you all for
    coming.
        I now yield to the Ranking Member, in this case Mr.
    Quigley, for his opening statement.
        Mr. Quigley. Thank you, Mr. Chairman. I would like to thank
    the Chairman for putting this together and all of our panelists
    for being here today.
        I need to apologize in advance. There is a markup next door
    in which I will go vote and come back, so don't take it as any
    sort of insult or slight.
        Today we consider a subject of great importance to every
    Member of this House, our responsibility to ensure that victims
    of crime have their rights respected, their needs met, and that
    everyone in the criminal justice system plays their part in
    assisting people who have suffered great harm.
        It is especially suitable that we are discussing these
    vital issues during National Crime Victims' Week. There was a
    time in this country when victims of crime were not treated
    respectfully. At times crime victims felt, not without
    justification, that they were considered almost extraneous to
    the process.
        With great awareness and legal protections enacted at the
    State and Federal levels, victims receive all kinds of
    assistance, including counseling, financial assistance,
    notification, and the respect to which anyone who has suffered
    harm is entitled. We offer both financial and technical
    assistance to States to help them provide services to crime
    victims.
        So while we have made great progress, we can and should do
    much more. We could provide adequate funding for crime victim
    programs. We could provide proper training and resources to
    Federal, State, and local law enforcement to ensure that our
    existing laws, which require notice and assistance to crime
    victims, are fully enforced.
        One thing we can do immediately is to reauthorize and fully
    fund the Violence Against Women Act, a landmark piece of
    legislation that provides invaluable resources to victims of
    some of the most heinous crimes. This vital legislation has not
    been reexamined in 7 years, and it is in need of some updates
    to ensure full protection of victims. For instance, the bill
    needs to be updated to include language that protects gay,
    lesbian, bisexual, and transgender individuals from
    discrimination at domestic violence shelters. It also needs to
    be amended to ensure undocumented workers who are victims of
    abuse feel safe reporting that abuse to authorities. And
    finally, the bill must be expanded to give American Indian
    authorities jurisdiction over non-Indians who have abused
    Indian women.
        As we discuss protecting victims today, I can think of no
    better way of safeguarding their rights than updating, fully
    funding, and reauthorizing the Violence Against Women Act to
    ensure protection of the rights of all victims of abuse.
        Crime victims also need to see the guilty parties punished
    and to be reassured that neither they nor anyone else will have
    to fear further victimization by that individual. In that
    regard, I have concerns about this proposed constitutional
    amendment.
        We have heard from law enforcement professionals that it
    will do more to obstruct the wheels of justice than to provide
    victims with the assistance they need to put their lives back
    together. For instance, under most versions of the amendment,
    victims would have a constitutional right to call for a faster
    disposition of a matter in their case. While certainly we want
    to see quick resolution of such cases, allowing the victim to
    demand a faster trial may infringe on the right of the accused
    person to adequately prepare. It may also impede the ability of
    a prosecutor to prepare. Similarly, giving victims the right to
    attend the entire criminal trial, even if hearing the testimony
    of other victims, could compromise the victim's testimony,
    could jeopardize the fairness of the trial.
        We have a law, the crime victims' right law, that achieves
    all the objectives sought by the proposed amendment. Let's look
    at improving and fully funding that law before we jump to amend
    the Constitution.
        As Mr. Cassell points out in his testimony, congressional
    funding for the National Crime Victims Law Institute clinics
    has been diminished. As a result, six clinics have stopped
    providing rights, enforcement, legal representation. The CVRA
    vision of an extensive network of clinics supporting crime
    victims' rights clearly has not been achieved.
        The Crime Victims' Right Act could also be improved by, for
    example, more clearly defining what is meant to be reasonably
    heard in court. Offering symbolic gestures to crime victims and
    weakening legislation that would provide assistance to them is
    not the best way to help victims of crime. Debating yet another
    constitutional amendment that we know from long experience is
    going nowhere will certainly not help victims of crime.
        I want to thank the Chairman and welcome our panel today,
    and I look forward to their testimony. I yield back.
        Mr. Franks. And I thank the gentleman.
        And without objection, other Members' opening statements
    will be made part of the record.
        I will now introduce our witnesses. Brooks Douglass is a
    lawyer, a former State senator in Oklahoma, and a film producer
    and actor. Mr. Douglass' 2010 film, Heaven's Rain, is the true
    story of the 1979 tragic murder of his parents, Dr. and Pastor
    R. Douglass and Marilyn Douglass, and the attempted murders of
    his younger sister and himself.
        Two criminals entered the Douglass home, bound the family,
    raped the 12-year-old daughter, and shot all four members of
    the family. Only the two children survived.
        Mr. Douglass went on to earn his M.B.A., J.D. and an M.P.A.
    At Harvard's Kennedy School of Government. He now devotes his
    life to working for victims' rights.
        Jesselyn McCurdy is a senior legislative counsel for the
    American Civil Liberties Union, the ACLU, with a focus on civil
    liberties in the areas of criminal justice. Prior, she was a
    counsel for the U.S. House of Representatives Committee on the
    Judiciary, Subcommittee on Crime, Terrorism, and Homeland
    Security. Ms. McCurdy has also worked as the assistant section
    director of the American Bar Association Section of Individual
    Rights and Responsibilities. She was a staff attorney for the
    American Prosecutors Research Institute, affiliated with the
    National District Attorneys Association. Ms. McCurdy received
    her J.D. from Catholic University of America and the Columbus
    School of Law.
        Paul Cassell is an endowed chair at the University of Utah
    College of Law. Professor Cassell received a J.D. from Stanford
    University, where he was president of the Stanford Law Review.
    He clerked for then-Judge Antonin Scalia, D.C. circuit at the
    time, and for Chief Justice Warren Burger. He then served as an
    Associate Deputy Attorney General; an assistant U.S. attorney,
    EDVA in Virginia; and a U.S. district court judge in Utah.
    Professor Cassell resigned his Federal judgeship to teach and
    litigate issues to advance victims' rights.
        And I would thank all the witnesses for appearing today. We
    appreciate you taking the time to come out and speak to us on
    this very important issue.
        Each of the witnesses' written statements will be entered
    into the record in its entirety. And I would ask each of the
    witnesses to summarize his or her testimony in 5 minutes or
    less. To help you stay within that time, there is a timing
    light on your table. When the light switches from green to
    yellow, you will have 1 minute to conclude your testimony. When
    the light turns red, it signals that the witness' 5 minutes
    have expired.
        Before I recognize the witnesses, it is the tradition of
    the Subcommittee that they be sworn. So if you would please
    stand.
        [Witnesses sworn.]
        Mr. Franks. Thank you. Please be seated.
        Also, to the witnesses, please turn on your microphone
    before speaking. That nearly gets about half of the witnesses.
        And I would recognize our first witness for 5 minutes. Mr.
    Douglass, thank you for being here, sir.

              TESTIMONY OF BROOKS DOUGLASS, CARROLLTON, TX

        Mr. Douglass. First, thank you, Chairman Franks, for
    considering this issue and for giving me the honor to come
    before this Committee and testify. As you said, it is an
    incredibly important issue. And really what I wanted to do was
    tell a little bit about my story, and you eloquently presented
    most of it, or a lot of it, for me.
        But as you said, in 1979, Glen Ake and Steven Hatch came to
    my front door. I let them in to use the phone. They over the
    next few hours, hog-tied us all face down on our living room
    floor in our home, took turns raping my 12-year-old sister
    Leslie, and then sat down and ate the dinner that my mother had
    been fixing, and then shot us all in the back and left us for
    dead. My mother and father both died there in front of me. And
    Leslie and I were able to get out of the house, get to--drive
    to a doctor's house and get medical help.
        That began our experience with the criminal justice system,
    beginning right at the start of speaking to the Oklahoma
    Highway Patrol, even when we didn't know if we were going to
    survive or not.
        About 6 weeks later Glen Ake and Steven Hatch were caught.
    They had also killed two people in south Texas. That time they
    shot them with a shotgun so they made sure they finished them
    off. I went on to college. Well, they were both tried within a
    year and given the death sentence.
        Over the next few years, I went on to college, was called
    back three times in the course of those 4\1/2\ years that I was
    in college to testify again against Steven Hatch in particular.
    In my senior year the Glen Ake case was heard by the U.S.
    Supreme Court. It was reversed and remanded for a new trial,
    which was held 7 years after the original trial--after the
    murders, and he was given life sentences at that time with
    possibility of parole because there was no life without parole
    in Oklahoma.
        So all told--we went back and testified then. All told, my
    sister and I testified nine different times against these guys
    that committed the crime. Seventeen years later, in 1996,
    Steven Hatch was finally executed.
        There were things that happened within the system, like the
    day we got out of the hospital, when we were discharged, we
    were handed a bill for over $500 that included the rape exam
    kit that was used on my sister Leslie to collect evidence of
    the rape. There was no provision in the law to reimburse us for
    that. I paid $117 to get my car back that had been impounded as
    evidence, and there was no provision in the law to reimburse
    us.
        In 1990, I was elected to the State senate, and as I said
    in my statement, I would love to say it is for lots of noble
    reasons, but the fact is I just needed a job, and there was an
    opening. So I ran at 26 and was elected, and was 27 when I took
    office and, you know, had the chance to--or I went on the
    judiciary committee about a year later or the appropriations
    committee. And I was on the subcommittee that funded the
    judiciary. Just then I got a call from a reporter saying--and I
    was avoiding victims' rights. I just wanted to pretend it
    wasn't an issue, I think, and didn't want to look like a
    crusader. So I didn't take that up until I got this call saying
    that the Hatch case was now the slowest-moving case on death
    row in Oklahoma. After 13 years it was on the third step of a
    nine-step appellate process, and a lot of it was because for 2
    years the Oklahoma Court of Criminal Appeals had lost the file
    in the case.
        So going on the appropriations committee right then, I had
    a chance to discuss this with the chief judge and, you know,
    keeping it as impersonal as I could, but at the end of the day,
    I couldn't help myself. I finally said, you know, until you
    guys find that file, get a decision handed down, and I really
    don't care what the decision is, you had better learn how to do
    your job with a number 2 pencil and a big cheap writing tablet
    because that is all you are going to have. And fortunately the
    other Members of the Subcommittee agreed with me. But
    miraculously they got the decision handed down within about 30
    days.
        Our experiences, you know, in dealing with the criminal
    justice system, there are a lot of things that I did as a
    senator. There were 28 pieces of legislation that I initiated,
    I sponsored, that got signed into law in Oklahoma, including
    one of them being a constitutional amendment, as you mentioned.
        The problem is that they are routinely ignored when it is
    not convenient for the court and even the prosecution. The
    prosecution does the best that they can. They have victim-
    witness coordinators. They try to do what we have asked them to
    do in the statute. But, yeah, there have been multiple times,
    one as recently as a few months ago, where I got a call from a
    victim who was not allowed to give a victim impact statement.
        So I see that my time is up, and I will take whatever
    questions you have.
        [The prepared statement of Mr. Douglass follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Franks. Well, thank you, Mr. Douglass, very much. And
    your testimony that you ran at 26 and elected at 27 also
    happens to be my own testimony in the legislature, and I would
    just caution you that that can lead to some pretty frightening
    ends. So you might want to be careful there.
        Mr. Douglass. They just told us where the bathroom was for
    about a year.
        Mr. Franks. Ms. McCurdy, I would now recognize you, ma'am,
    for 5 minutes.

      TESTIMONY OF JESSELYN McCURDY, SENIOR LEGISLATIVE COUNSEL,
                     AMERICAN CIVIL LIBERTIES UNION

        Mr. McCurdy. Thank you, Mr. Chairman.
        I would like to thank----
        Mr. Franks. Ms. McCurdy, could you pull that microphone a
    little closer to you?
        Mr. McCurdy. Thank you.
        I would like to thank Chairman Franks, Ranking Member
    Nadler, and also acknowledge my former boss Representative
    Scott for inviting the American Civil Liberties Union to
    testify at today's hearing on the victims' rights amendment.
        The victims' rights constitutional amendment introduced by
    the Chairman would extend various rights to all crime victims.
    This amendment would profoundly alter the Nation's founding
    charter. It would fundamentally compromise the Bill of Rights
    protections for accused persons in every Federal, State, and
    local criminal case.
        While the proposed amendment would attempt to codify a role
    for criminal victims in the criminal justice process, the ACLU
    is concerned that it will be difficult to provide the rights of
    victims while preserving the constitutional rights of people
    accused of crimes whose fundamental liberty interest is
    directly at stake.
        The Framers created a two-party adversarial criminal
    justice system with the public prosecutor, a criminal
    defendant, and a neutral judge. The Framers were aware of the
    enormous power of the government to deprive a person of life,
    liberty, and property. The VRA will jeopardize the basic
    safeguards put in place to protect criminal defendants by
    infringing on their presumption of innocence and right to a
    fair trial.
        In the past 220 years, the Federal Constitution has been
    amended only 17 times. Amending the Constitution is a serious
    matter and should be reserved for those issues where there are
    no other alternatives available. Many of the provisions of the
    victims' rights amendment reflect laudable goals, but it is
    unnecessary to pass a constitutional amendment to achieve them.
        On October 30, 2004, Congress enacted the Crime Victims'
    Rights Act of 2004, legislation that enumerates eight statutory
    rights for victims of crime. In addition, every State has
    either a State constitutional amendment or statute protecting
    victims' rights.
        The constitutional protections afforded the accused in
    criminal proceedings are among the most precious and essential
    liberties provided in the Constitution. The VRA undermines the
    presumption of innocence by conferring rights to an accuser at
    the time in a criminal case when the accuser is still presumed
    innocent. Not every person accused of a crime is actually
    guilty of committing a crime, but giving the accuser the
    constitutional status of victim could impact the judge and
    jury, making it extraordinarily difficult for fact-finders to
    remain unbiased when the victim is present at every court
    proceeding, and potentially prejudicing those who will
    determine guilt or innocence.
        The VRA makes the accuser a third party in a criminal case
    even before a judge or jury has determined the accused is
    actually a victim.
        The VRA would give crime victims a constitutional right to
    attend the entire criminal trial, even if the victim is going
    to be a witness in the case. In many instances, the testimony
    of a prosecution witness will be compromised if the person has
    heard the testimony of other witnesses. Typically trial
    witnesses are barred from the proceedings prior to their
    testimony for this very reason. Despite the possibility of
    tainting his or her testimony, the VRA gives the victim a
    constitutional right to be present, even over the objections of
    the defense or prosecution.
        The crime victims' rights was established in October of
    2004, establishing eight rights for Federal crime victims and
    two mechanisms to enforce those rights. Congress enacted CVRA
    after another version of the victims' rights constitutional
    amendment failed. In passing the CVRA instead of a
    constitutional amendment, Congress intended to preserve the
    system the Framers created, with the public prosecutor charged
    with acting in the public interest, and a criminal defendant
    with a full panoply of constitutional rights, and a neutral
    judge.
        The CVRA also directed the General Accounting Office to
    conduct an evaluation of limitations of the CVRA. GAO found
    that there were very few victims having asserted their CVRA
    rights in court.
        According to the GAO, several key issues have developed
    since the implementation of the CVRA that require the courts to
    interpret provisions of the law. For example, it is unclear
    whether the CVRA applies to victims of local offenses
    prosecuted in the District of Columbia. It is also unclear what
    stage of the criminal justice process the CVRA rights begin to
    apply and what standard of appellate review should be used for
    writs of mandamus. These should all be noncontroversial changes
    that Congress could make to the legislation in order to
    facilitate and exercise the victims' rights without passing a
    constitutional amendment.
        The VRA would give victims rights at least equal the
    defendants' constitutional rights; however, some of these same
    rights are given in the statute.
        The ACLU opposes any effort to enact a victims' rights
    constitutional amendment because it would undermine the
    presumption of innocence and the right to a fair trial for the
    accused.
        Mr. Franks. Thank you, Ms. McCurdy.
        [The prepared statement of Ms. McCurdy follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Mr. Franks. And I would now recognize Professor Cassell for
    5 minutes.

      TESTIMONY OF PAUL G. CASSELL, RONALD N. BOYCE PRESIDENTIAL
     PROFESSOR OF CRIMINAL LAW, S.J. QUINNEY COLLEGE OF LAW AT THE
                           UNIVERSITY OF UTAH

        Mr. Cassell. Thank you, Mr. Chairman and distinguished
    Members of the Committee. I am pleased to be here today----
        Mr. Franks. Professor Cassell, let us try to pull that a
    little closer. I know it is always----
        Mr. Cassell. Is that better there?
        Mr. Franks. Not much. Is the microphone on?
        Mr. Cassell. Is the microphone on? Is it on now? Is that
    working?
        Mr. Franks. Not very well, sir. Let us try to pull it even
    closer.
        Mr. Cassell. All the way up here. Is that better?
        Mr. Franks. I guess it will have to work. Yes, sir.
        Mr. Cassell. All right. Mr. Chairman and distinguished
    Members of the Subcommittee, I am pleased to be here today to
    testify in support of House Joint Resolution 106, the victims'
    rights amendment.
        The victims' rights amendment would expand civil liberties
    by adding a bill of rights for crime victims to our Federal
    Constitution. In doing so, the victims' rights amendment would
    build on the experience of more than 30 States who have all
    amended their constitutions to add protections for victims'
    rights.
        Now, while these efforts have been valuable, they have not
    been fully successful in protecting crime victims. As Attorney
    General Janet Reno reported after a comprehensive review by the
    Justice Department, these significant State efforts simply are
    not sufficiently consistent, comprehensive, or authoritative to
    safeguard victims' rights.
        Research has shown that the crime victims most likely to be
    deprived of their rights under the current patchwork regime are
    racial minorities, residents of inner cities, and the poor.
    Only an unequivocal constitutional mandate will translate paper
    promises into real guarantees for crime victims.
        The victims' rights amendment builds on the fact that there
    is a national consensus that crime victims deserve respect in
    our criminal justice process. It would protect basic rights,
    like the right to be notified about court hearings, the right
    to attend those hearings, and the right to be heard at relevant
    points in the process, like bail hearings, plea hearings and
    sentencing. These are the kinds of rights that our Constitution
    is typically and properly concerned about, the rights of
    individuals to participate in governmental processes that
    seriously affect their lives. As President Clinton explained in
    endorsing the victims' rights amendment, participation in all
    forms of government is the essence of democracy.
        Criticisms of the amendment are often based on uninformed
    speculation about how the language might be misinterpreted or
    misapplied by courts. But as I detail at greater length in my
    written testimony, the victims' rights amendment draws on the
    experience in the various States and Federal legislation that
    is out there. For example, the victims' rights amendment begins
    by promising all victims that their rights to, quote, fairness,
    respect, and dignity shall not be denied or abridged by the
    United States or any State. Similar provisions are found in the
    Crime Victims' Rights Act and in the State constitutions of
    Arizona, Idaho, Illinois, Maryland, New Jersey, Texas,
    Wisconsin, and my home State of Utah. State and Federal courts
    have taken that language and applied it without the kinds of
    difficulties that have been speculated by the ACLU or other
    opponents. I have never heard any serious argument about
    giving--against giving victims the right to be treated with
    fairness, dignity, and respect in the process, and these rights
    should be enshrined in our Constitution.
        Now, sometimes it is argued, as it has been this afternoon,
    that crime victims' rights will come at the expense of
    defendants' rights. But House Joint Resolution 106 is a very
    carefully crafted measure that adds victims' rights that would
    coexist alongside with defendants' rights. For example,
    paralleling a defendant's Sixth Amendment right to a speedy
    trial, House Joint Resolution 106 gives victims the right to
    proceedings free from unreasonable delay. According to Harvard
    law professor Larry Tribe, who has endorsed a version of the
    amendment, these rights cannot collide since, by definition,
    they are both designed to bring matters to a close within a
    reasonable period of time.
        Now Mr. Quigley was wondering whether or not this right
    would be used to force prosecutors to go to trial before they
    were ready or defense attorneys to go before they were fully
    prepared. It would not. The victims' rights amendment simply
    extends to victims the right to proceedings free from
    unreasonable delay. If a prosecutor or defense attorney needs
    additional time, they certainly would be entitled to receive it
    under the amendment.
        Now, the amendment specifically addresses the concern about
    protecting the legitimate interests of criminal defendants by
    identifying crime victims' rights as those, quote, capable of
    protection without denying the constitutional rights of the
    accused. This language was included in the amendment at the
    suggestion of Harvard law professor Larry Tribe. And I noticed
    that in neither Ms. McCurdy's prepared remarks or her testimony
    this afternoon does she even mention this direct language, let
    alone explain how courts could somehow ignore it and deny
    rights to criminal defendants. It is hard to understand how the
    amendment could be used to deny defendants their rights when
    the explicit text provides exactly the opposite.
        While the amendment would not in any way interfere with the
    legitimate interests of criminal defendants, it would protect
    vital interests of crime victims. It would protect victims from
    being excluded from court proceedings, proceedings that they
    desperately want to attend to learn all they can about crimes
    that have been committed against them. It would guarantee
    victims the right to be heard at bail, plea, and sentencing
    hearings not to veto the decisions that judges would make in
    those hearings, but simply to have a voice in the process. And
    it would mandate that victims receive reasonable notice of the
    release or escape of accused persons or defendants, which can
    sometimes be literally a matter of life or death for victims
    who need to take appropriate steps to protect themselves
    against criminals on the street.
        These rights are not controversial. They command broad
    bipartisan support, which is why President Clinton first
    proposed a victims' rights amendment and later saw it endorsed
    by President George Bush. Public opinion polls consistently
    show overwhelming majorities of Americans want constitutional
    protection for crime victims' rights.
        Now, I understand that in Washington today, delay has
    occurred on some issues because of partisan disagreement on how
    to proceed, but I hope there will be no delay in moving forward
    with the victims' rights amendment. The Framers of the
    Constitution undoubtedly believed that victims of crime would
    receive adequate respect in our criminal justice system.
    Because experience has not vindicated that expectation, it is
    now necessary to add a corrective amendment to our
    Constitution, the victims' rights amendment.
        Mr. Franks. Thank you Professor Cassell.
        [The prepared statement of Mr. Cassell follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Mr. Franks. And I will now begin the questioning time by
    recognizing myself for 5 minutes. I again appreciate all of you
    for your testimony.
        Mr. Douglass, I will begin with you. I have had the
    opportunity to hear many different witnesses express very
    moving testimony, but I will say to you, sir, that your
    testimony here today was one of the most moving and compelling
    that I have heard as the Chairman of this Committee. And I will
    suggest to you that your parents would be and are quite proud
    of you for your performance and presence here today.
        Mr. Douglass. Thank you.
        Mr. Franks. And I would ask you, if you would, to describe
    real-life examples that you have discovered in your own life or
    experience where existing crime victims statutes or State
    constitutional amendments have failed to provide the
    protections that they promised to crime victims.
        Mr. Douglass. Certainly. Thank you, Mr. Chairman. I will
    give one example.
        After we passed the initial victims' rights act in
    Oklahoma--and that included, actually amended in 1992, the U.S.
    Supreme Court handed down a decision saying that victim impact
    statements were constitutional. About a year later, after our
    statute had passed, I got a call from someone that I knew in
    Tulsa, Oklahoma. His mother had been murdered, and they had
    held the trial, and the person--someone had just been convicted
    of committing that murder.
        He called me and said that they were all getting ready to
    give their victim impact statements, and the judge literally
    said, I am not going to hear it. So the prosecutor went in and
    argued the Supreme Court decision and our statutes and said,
    you have to hear this testimony. And he just said, I am not
    going to do it. So they had called me and asked me to call the
    judge and discuss it with him, which I did. And the judge
    basically said, I don't think it is constitutional, and I am
    not going to hear it. I don't like being told what to do in my
    courtroom.
        And the upshot was, what are you going to do about it? And
    to make a long story short, I wound up bringing in the Court of
    Criminal Appeals chief judge. We had a conversation with him,
    and I said the same thing to both of them. I said, well, I
    understand you have a job to do. You don't want to be told what
    to do in your courtroom. And I have a job to do as a State
    senator, and now I am going to do mine. I said, I am going to
    go down and I am going to get staff. I am going to author a
    bill that creates a review committee, and what their job will
    be is to review decisions dealing with crime victims' rights,
    and if they find that you have wrongfully denied a victim of
    one of their rights under the statutes or the Constitution of
    Oklahoma, they are going to ultimately have the power to take
    away your pension.
        Well, you know, pretty quickly he decided then that--I
    don't know if it would be constitutional for me to do that or
    not, frankly, but I didn't have to file the bill. He wound up
    actually deciding it was a good idea to hear the victim impact
    testimony.
        But there have been countless--even after I left the
    senate, just as I think I said in my testimony a few months
    ago, a judge, a sitting judge who I went to law school with,
    and maybe it wasn't a very good law school, but at the end of
    the day, he just said, I don't think it is constitutional. He
    doesn't bother looking up Supreme Court decisions. As you
    mentioned in your initial statement, just the mention of the
    constitutional rights of the accused is enough for them.
    Whether it has any basis or not, the victims' rights are
    ignored.
        As I have said many, many times from the senate floor in
    Oklahoma, we have a system that literally steps over the body
    of the victim to read the criminal his rights, or the suspect
    his rights, and as long as there is not equal footing, as
    long--the victims will continue to be second-class citizens in
    our system.
        Mr. Franks. Well, thank you, Mr. Douglass, very much. And I
    again appreciate your presence here today, sir.
        Professor Cassell, it seems I have been mispronouncing your
    name, and I apologize. But how widespread, in your opinion, is
    the problem described by Mr. Douglass; that is, this failure of
    State victims' rights laws to protect crime victims? And I
    suppose I should add, what reason is there for thinking that if
    a Federal constitutional amendment were enacted, that the
    protection of crime victims' rights would improve?
        Mr. Cassell. Let me address both of those questions. There
    was a comprehensive Justice Department review done by Attorney
    General Janet Reno, and she found that the State enactments
    failed to fully safeguard victims' rights because they were not
    sufficiently consistent, comprehensive, or authoritative. She
    relied in part on a National Institute of Justice study that
    looked at, I think, eight different States to see how the State
    amendments were being implemented, and they found significant
    problems. For example, fewer than 60 percent of crime victims
    were notified of sentencing hearings, and fewer than 40 percent
    of victims were notified of pretrial release.
        Now, those error rates are simply astounding. I mean, I
    wonder what the Committee would do if it found out, for
    example, that even 5 percent of criminal defendants were not
    getting their right to be represented by counsel or something
    along those lines. I am assuming there would be hearings and
    immediate steps taken to rectify the situation. But that is the
    level of the problem that is out there.
        Now, we have heard some discussion, too, about the Federal
    system and the new Crime Victims' Rights Act. I wanted to say
    just a couple of words about that. Let us remember that the
    Federal Crime Victims' Rights Act applies to fewer than 5
    percent of the criminal prosecutions in this country. Most of
    the prosecutions are done at the State and local level, and
    certainly most of the violent crimes or extremely violent
    crimes, such as the one Mr. Douglass is talking about, are
    handled by State and local prosecutors. So the Federal system,
    I think, is a little bit unusual. But even here the General
    Accounting Office found significant situations, such as the
    fact that less than half of Federal victims were even aware
    that they had a right to confer with Federal prosecutors.
        So that is the level of the problem that we have out there.
    A constitutional amendment would immediately change the
    culture. The kinds of examples we have been hearing about today
    simply wouldn't happen. You don't see judges ignoring a
    defendant's right to counsel, because they are taught that in
    law school, they know it is in the Constitution, and they
    respect it. The same kind of change would happen if we passed a
    victims' rights amendment.
        Mr. Franks. Well, thank you, Professor. And related to your
    testimony about the Janet Reno study, did I hear it--was it
    Janet Reno?
        Mr. Cassell. Yes.
        Mr. Franks. Okay. From my memory on that part, that she has
    been accused of being part of a right-wing conspiracy here.
        But with that I would yield to Mr. Quigley for 5 minutes
    for questions.
        Mr. Quigley. Thank you, Mr. Chairman.
        Mr. Douglass, I apologize for being out of the room when
    you testified. One of the few absolute responsibilities we have
    here is voting, and I was next door doing that. But I read your
    testimony. It is quite compelling and very important for us to
    appreciate.
        To all of our panelists, having been in the trenches of the
    justice system as a criminal attorney at 26 in California and
    Chicago for 10 years, probably 220 trials, I can tell you it
    isn't easy. We all speak of a balance, but the balance is
    played out every day.
        And, Professor, when I talk about my reservations, it comes
    from that experience, because after I left that work, I was a
    Cook County commissioner on the litigation committee. Our first
    act was to deal with a lawsuit of four men, the Ford Heights
    Four, who went to jail or on death row. One was lined up on
    death row. One was raped in prison. And it was the wrong guys,
    right? In Illinois--we talk about the balance, the horrific
    unfortunately goes to both sides.
        Before they got rid of the death penalty, they exonerated
    more people on death row through DNA and so forth than they
    executed. So if no one cares about that aspect from the issue
    of justice, the county had to settle the Ford Heights case for
    $36 million.
        So that no one thinks this is just about the alleged
    perpetrators' rights being taken away, being put on death row,
    we want to get this right because the victims want the right
    people punished. So my concern, Professor, is we got to get
    this right. And when it comes to speedy trials, you say--you
    quoted someone from Harvard saying they can't collide. Well,
    they do. And I am telling you, it is not easy to sort out, you
    know? We put people on the bench. Some are good, and some are
    bad.
        But you have to appreciate from a veteran's point of view,
    I have seen haste make horrible mistakes. I mean, how do you
    balance that out with the language that you are trying to
    address here beyond just that word ``unreasonable,'' which
    courts struggle with?
        Mr. Cassell. Well, I was a Federal prosecutor for 4 years,
    and I was a Federal district court judge for 5 years, so I have
    been in the trenches as well and have seen a number of the
    cases that are out there.
        I think I agree with Harvard law professor Laurence Tribe.
    He was the law professor that I was quoting. And the idea here
    is not to take away rights from criminal defendants, but to
    expand rights for crime victims.
        So let us talk about the one you have been pointing to, and
    the language, I think, is very carefully drafted. It says that
    crime victims would have the right to proceedings free from
    unreasonable delay. And by definition, and the situation in
    which the prosecutor needs to prepare a case or the defendant
    needs to collect evidence, that would be reasonable delay. But
    we have all seen situations--I am sure you have--where delay is
    happening for delay's sake or for no good reason at all. The
    amendment would give a victim a right to go in and say, wait a
    minute, Judge, we need to get this case moving along.
        The other thing I should point out is that there are a
    number of States--and my prepared testimony actually lists
    them--that already have in their State constitutions a
    constitutional right to proceedings free from unreasonable
    delay. So the fact that these States have been able to provide
    these rights without the kinds of problems that I think some
    have been suggesting bodes very well for the Federal
    constitutional amendment.
        Mr. Quigley. And I appreciate what you are saying. I still
    think, though, beyond the simple words of what you are trying
    to do, every case is unique, and every case is bound upon that.
    And I think to a certain degree you are creating unrealistic
    expectations that with the stroke of a pen and the passage of a
    constitutional amendment, judges are going to have a much
    easier time sorting out that troubling aspect of this right
    now, and that is lost witnesses, complicated data, experts'
    cost, pending litigation. You know, perhaps much better than I,
    a dozen other reasons that this could be held off and could be
    extraordinarily complicated, and we get it wrong both ways. You
    know, it is something we struggle with.
        I just have fears that it is hard to do the most important
    thing we do, and that is seek justice, with the language that
    has to be so broad as a constitutional amendment, and you want
    to be balanced. But I just think it is harder than that, what
    you have tried to explain here in just these few minutes, and
    there is just so much at stake in our attempts to do so,
    because, again, it does the victims no good to have a hearing--
    to have a trial take place, and we get the wrong people.
        But I will yield back.
        Mr. Franks. Thank you, Mr. Quigley.
        We will now recognize Mr. Scott for 5 minutes.
        Mr. Scott. Thank you, Mr. Chairman.
        I think we all want dignity, respect, and protection for
    our witnesses, and the question is whether the constitutional
    amendment would create more problems than it solves. Professor
    Cassell mentioned the State measures. They are all subservient
    to the Federal Constitution.
        You also mentioned the right to counsel and how that is not
    ignored. Well, a right to counsel, if you violate that, that is
    reversible error. That is why the judge has to pay attention to
    that. There is nothing in here that creates any remedy that is
    apparent. I guess mandamus.
        If you really want to provide respect, dignity,
    consultation, protection, what we ought to do is have more
    victim advocates, more prosecutors so they have actual time. A
    lot of State prosecutors come in with a stack of files. They
    don't have time to talk to anybody, so of course they are going
    to be rude. If you had more prosecutors and more marshals to
    provide protection. Unfortunately the budget that we are trying
    to work under this year eliminates a lot of the funding for the
    victims' advocates, cuts the Department of Justice budget
    significantly, and has about a 10 percent cut for the marshal
    services. So who is going to be doing the protection?
        Let me ask a couple of questions, because some of this is
    all in theory, and I just want to know what this kind of looks
    like.
        If a victim has, in fact, been disrespected and goes in the
    court and presents a case--it says any court, so I assume if it
    is a State court proceeding, they can go into Federal court to
    make the case that they are being disrespected in State court.
    What does a judge do? Does a prosecutor get subpoenaed to
    testify, no, I didn't disrespect them?
        Mr. Cassell. The way the enforcement would work is if there
    was a problem in State court, the victim would go into State
    court to address that.
        Mr. Scott. Well, it says in here any court, enforce those
    rights in any court, has a standing to enforce these rights in
    any court.
        Mr. Cassell. So you would have standing to enforce them in
    both State and Federal court.
        Mr. Scott. So you would go to Federal court and present to
    a judge that you are being disrespected in State court?
        Mr. Cassell. You would go initially, though, to the State
    court, because the State court is the--you have to exhaust
    remedies before you can proceed to some other forum to
    vindicate your rights. And the way that this would work--again,
    there are real-world examples of a right to be treated with
    respect, and my prepared testimony collects specific examples.
        For example, in a child pornography prosecution, if
    somebody is showing the pornography around in ways that are not
    respectful to the victim, the victim can go to that judge and
    say, wait a minute, these materials should be kept under seal,
    only disclosed to people that have a need to see that
    information. That is the kind of enforcement that becomes
    possible if a Federal constitutional amendment----
        Mr. Scott. Well----
        Mr. Cassell [continuing]. Around the country.
        Mr. Scott. Let us get back to disrespect. If you are in
    court and approved your case, can you subpoena the prosecutor?
        Mr. Cassell. You wouldn't need to subpoena the prosecutor.
    The prosecutor would be right there during the proceedings, and
    so you would assert----
        Mr. Scott. Now, if you are in any court, you can go into
    any court and--so let us say the judge is the problem, and you
    want to go into another court to show that you are being
    disrespected. And you present it to the court: Won't return
    phone calls, didn't notify me of this and that. Is that an ex
    parte proceeding? Can you go ex parte in Federal court?
        Mr. Cassell. No, you don't go ex parte. Again, there are
    real-world examples of how these rights are handled, and you
    don't go to a different court, you don't subpoena the judge.
    Just as you pointed out, if a defense attorney is not appointed
    for a defendant, you don't go and subpoena----
        Mr. Scott. No. That is reversible error. You don't have to
    worry.
        If you have shown that you are being disrespected, what is
    the remedy?
        Mr. Cassell. Well, the remedy is to correct the disrespect.
        Mr. Scott. And if they don't do it, what is the remedy?
        Mr. Cassell. The remedy then is to go to the appellate
    court and say the lower court is not following the directive in
    the United States Constitution. Again, there are real-world
    examples.
        Mr. Scott. Is that an ex parte proceeding?
        Mr. Cassell. No. It is a judicial proceeding that is
    handled with notice to both sides with service of process on
    both sides.
        Mr. Scott. And you don't have enough prosecutors to begin
    with. So they are sitting up in all these other courts.
        Unreasonable delay. How will a judge determine whether or
    not the delay is reasonable or not?
        Mr. Cassell. Right. There would be typically a four-factor
    balancing test. In my prepared remarks, I indicate the four
    factors that the judges have used. And remember, defense
    attorneys now----
        Mr. Scott. I am running out of time. So if the delay is
    because the prosecutor's witness has disappeared, and the
    defense doesn't know about it, or refuses to testify, or the
    prosecution has lost the evidence and is trying to find it,
    would that be an open trial with the defendant there listening
    to the proceedings as to why they haven't gone forward?
        Mr. Cassell. The question would be for the judge whether
    the delay was reasonable or not, and a record would be made on
    that. In certain situations records can be made in sealed
    proceedings. So that is how that issue would be handled.
        Mr. Scott. Well, I mean, so the defendant would have the
    opportunity to hear that the prosecutor's case has all fallen
    apart, and that is why they are asking for a continuance?
        Mr. Cassell. That is the way it happens today in many
    cases.
        Mr. Scott. No, they just--the defendant knows he did it, so
    he doesn't want--if the prosecutor wants a continuance, fine
    with me.
        Now you have got an idea that the witness isn't going to
    show up, and the victim says it is unreasonable delay. And the
    judge says, this is unreasonable; Mr. Prosecutor, why aren't
    you going forward? Then what does the prosecutor say?
        Mr. Cassell. All I can say, Congressman, is that that has
    not been a problem, for example, in my home State of Utah,
    where there is such a right. And that is probably why the
    National District Attorneys Association just this week endorsed
    the amendment saying it would actually strengthen the
    prosecution.
        Mr. Scott. Mr. Chairman, can I ask one additional question?
        Mr. Franks. Without objection, please.
        Mr. Scott. The language in section 1 starts off with the
    rights of the crime victim, fairness, respect, and dignity,
    being capable of protection without denying the constitutional
    rights of the accused. Do you interpret that as being a
    priority for rights of the accused or a statement, in fact,
    that you can provide fairness, respect, and dignity without
    denying the constitutional rights? Is that a question of fact,
    a statement of fact, or a statement of priority?
        Mr. Cassell. What it is is a statement of coexistence, that
    both victims' rights and defendants' rights can coexist without
    compromising each other. The language, I should point out, was
    drafted by Harvard law professor Laurence Tribe, again who is
    frequently cited as one of the leading advocates for civil
    liberties in this country. So we think the language would
    actually work very well to make sure that both defense
    interests and crime victims' interests are----
        Mr. Scott. Well, my question is if there is--if somebody
    believes there is a conflict, would the right of the accused
    trump the rights of the victim? Or is this a statement of--
    trying to be a statement of fact that there is, in fact, no
    conflict, and that the crime victims' rights will be respected
    notwithstanding any denying of constitutional rights to the
    accused?
        Mr. Cassell. It does not provide a basis for denying
    defendants' rights. It does not provide a basis for denying
    victims' rights. It says that both rights can coexist. And
    again, nobody has provided a real-world example of how the
    rights are going to interfere with the defendants' interests.
        Mr. Franks. Mr. Scott, I am going to have to ask you to
    leave it there, sir. I have got a vote in the Committee next
    door that I have got to--and that means I am going to have to
    be pretty direct here.
        But we have had a good hearing, and I want to thank all of
    the witnesses for coming. And, without objection, all Members
    will have 5 legislative days to submit to the Chair additional
    written questions for the witnesses, which we will forward and
    ask the witnesses to respond to as promptly as they can so that
    their answers may be made a part of the record.
        Without objection, all Members will have 5 legislative days
    within which to submit any additional materials for inclusion
    into the record.
        With that, again, I sincerely thank the witnesses. I thank
    the Members and observers. And this hearing is now adjourned.
        [Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

        Supplement to the Testimony of Paul G. Cassell, Ronald N. Boyce
    Presidential Professor of Criminal Law, S.J. Quinney College of Law at
                             the University of Utah

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     Material submitted by the Honorable Trent Franks, a Representative in
     Congress from the State of Arizona, and Chairman, Subcommittee on the
                                  Constitution

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]