The Volokh Conspiracy - The Crime Victim's Right to Confer with Prosecutors

The federal Crime Victims' Rights Act gives crime victims "the reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. sec. 3771. How far does this right extend?

In a previous post (found here) I noted the Eleventh Circuit's recent decision interpreting the Crime Victims' Rights Act as providing protection to victims' of financial fraud even when they are not listed as victims in the indictment filed by the Government. In the wake of that ruling, the Government has filed a petition for panel rehearing with the Circuit. Now the victims (whom I represent along with other attorneys) have filed motion to strike the Government's Rehearing Petition alleging a violation of their right to confer.

A few facts: The victims sought to confer with the Government before it filed any rehearing petition. The Govenrment refused, sending a note to the victims that the right to confer in the CVRA does not extend that far.

The victims' motion to strike, found here, contends that the Government's failure to confer with them about the rehearing petition violated the CVRA and that the proper remedy for that violation (and others) is to strike the rehearing petition.

Here is the introduction to the motion:

The victims come to the Court (reluctantly) because the Government has bluntly refused to confer with them and thus has clearly violated the CVRA. In brief, immediately after this Court granted the victims’ mandamus petition, the victims sent a detailed letter to the U.S. Attorney’s Office handling the case requesting an opportunity to promptly confer about important issues that had arisen in the wake of the ruling. The Office chose, however, to ignore that letter, instead informing the district court (but not the victims) that it would be seeking rehearing. Upon learning of the Office’s apparent decision, the victims again immediately requested an opportunity to confer. Again, the U.S. Attorney’s Office chose not to confer, belatedly informing the victims in a terse e-mail that, in its view, the CVRA did not give the victims any rights to confer about rehearing and the issues intertwined with it. The prosecutors’ interpretation of their obligations under the CVRA is too narrow. The CVRA broadly confers on victims “[t]he reasonable right to confer,” 18 U.S.C. § 3771(a)(5), a right which the congressional sponsors of the Act stated “is intended to be expansive." 150 Cong. Rec. S4268 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added). The U.S. Attorney’s Office is therefore simply wrong as a matter of law in concluding that it need not confer with the victims about its rehearing petition.

I thought VC readers might be interested in the victims' motion and in the broader question of how far does a right to confer extend?

	[Paul Cassell, January 14, 2009 at 12:46pm] Trackbacks The Crime Victim's Right to Confer with Prosecutors The federal Crime Victims' Rights Act gives crime victims "the reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. sec. 3771. How far does this right extend? In a previous post (found here) I noted the Eleventh Circuit's recent decision interpreting the Crime Victims' Rights Act as providing protection to victims' of financial fraud even when they are not listed as victims in the indictment filed by the Government. In the wake of that ruling, the Government has filed a petition for panel rehearing with the Circuit. Now the victims (whom I represent along with other attorneys) have filed motion to strike the Government's Rehearing Petition alleging a violation of their right to confer. A few facts: The victims sought to confer with the Government before it filed any rehearing petition. The Govenrment refused, sending a note to the victims that the right to confer in the CVRA does not extend that far. The victims' motion to strike, found here, contends that the Government's failure to confer with them about the rehearing petition violated the CVRA and that the proper remedy for that violation (and others) is to strike the rehearing petition. Here is the introduction to the motion: The victims come to the Court (reluctantly) because the Government has bluntly refused to confer with them and thus has clearly violated the CVRA. In brief, immediately after this Court granted the victims’ mandamus petition, the victims sent a detailed letter to the U.S. Attorney’s Office handling the case requesting an opportunity to promptly confer about important issues that had arisen in the wake of the ruling. The Office chose, however, to ignore that letter, instead informing the district court (but not the victims) that it would be seeking rehearing. Upon learning of the Office’s apparent decision, the victims again immediately requested an opportunity to confer. Again, the U.S. Attorney’s Office chose not to confer, belatedly informing the victims in a terse e-mail that, in its view, the CVRA did not give the victims any rights to confer about rehearing and the issues intertwined with it. The prosecutors’ interpretation of their obligations under the CVRA is too narrow. The CVRA broadly confers on victims “[t]he reasonable right to confer,” 18 U.S.C. § 3771(a)(5), a right which the congressional sponsors of the Act stated “is intended to be expansive." 150 Cong. Rec. S4268 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added). The U.S. Attorney’s Office is therefore simply wrong as a matter of law in concluding that it need not confer with the victims about its rehearing petition. I thought VC readers might be interested in the victims' motion and in the broader question of how far does a right to confer extend?