EFTA01091403.pdf

Rights and Procedures Under the Crime Victims' Rights Act and New Federal Rules of Criminal Procedure Amy Baron•Evans' April 30, 2009 On December I, 2008, new Federal Rules of Criminal Procedure said to incorporate or implement provisions of the Crime Victims Rights Act, 18 U.S.C. § 3771 ("CVRA") went into effect. The Appendix contains the two new rules (Rules I (b)(I ) and 60), and the amendments to existing rules (Rules 12.1, 17(c), 18 and 32) in redline and strikeout. Part I of this paper provides the briefest overview of the CVRA's eight rights and enforcement provisions, and the new rules. Part II explains the rulemalcing background behind these rules, including the political forces at work and the Committee's intent in promulgating the rules. Part III explains that the CVRA left the adversary system and defendants' constitutional rights intact, that defendants' constitutional rights trump victims' statutory rights, and that victims are not parties. Part IV explains that rules of procedure must be interpreted to avoid conflict with the Constitution and the Rules Enabling Act if possible, and are invalid if no such limiting construction is possible. Part V covers each of the eight CVRA rights in detail, including courts' interpretations of those rights, changes to the rules associated with some of the CVRA rights (Rule 32(c)(l)(B) & (i)(4)(B) and new Rule 60(a)), and related rights of defendants. Part VI covers special procedures, not contained in the CVRA, which were created solely by amendments to the rules (Rules 12.1(b), 17(c)(3), 18 and 32(d)(2)(B)), and ways to avoid problematic applications of those amendments. Part VII sets forth general procedures for the conduct of proceedings in which a victim or alleged victim is involved, based on the procedural provisions of the CVRA, new Rules I (b)( II) and 60(b), and the procedural rights of defendants that must be observed in criminal proceedings. Finally, Part VIII provides suggestions on how defense counsel can help clients make amends with victims in ways that are beneficial to both. TABLE OF CONTENTS I. Overview of CVRA and New Rules 4 II. Rulemaking Background 6 III. Constitutional Background 8 A. The CVRA Keeps The Two-Party Adversary System and Defendants' Constitutional Rights Intact. Congressional Floor Statements to the Contrary Cannot Alter the Statute Congress Voted Into Law or Constitutional Framework.. 8 B. Defendants' Constitutional Rights Trump Victims' Statutory Rights 10 IV. The Rules Must Be Interpreted to Avoid Abridging Defendants' Rights or Enlarging Victims' Rights; If No Such Interpretation is Possible, the Rule is Invalid . II I Thanks to Denise Barren. Jennifer Coffin, and Rachelle Barbour for their contributions to this paper. EFTA01091403  A. Avoidance Canon 11 B. The Constitution 12 C. The Rules Enabling Act 12 I. A rule's purpose must be to regulate procedure without regard to substantive interests 13 2. A rule shall not abridge, enlarge or modify any substantive right 13 D. The Criminal Rules Advisory Committee's Intent and Understanding was that the Rules Comply with the Constitution and the Rules Enabling Act 15 V. The Eight "Rights," Associated Rules, and Related Constitutional Requirements 15 A. "Reasonably Protected from the Accused," § 3771(a)(1) 16 B. "Reasonable, Accurate and Timely Notice of Any Public Court Proceeding...Involving the Crime," § 3771(a)(2), (c)( I); Rule 60(a)( I) 17 C. "Not to be Excluded from any Such Public Court Proceeding" Unless the Court Determines by "Clear and Convincing Evidence" that the Victim's Testimony "Would be Materially Altered," § 3771(a)(3), (b)( I); Rule 60(a)2) 17 1. No Right to Attend, but a Qualified Right Not to be Excluded 17 2. Violation of Due Process 18 3. Full Discovery and Development of the Facts 18 4. Alternatives to Prevent Fabrication and Tailoring 19 5. Cross-Examination and Jury Instruction 19 6. Reason for Any Decision Must be Clearly Stated on the Record 20 D. "Reasonably Heard at any Public Proceeding Involving Release, Plea, Sentencing," § 3771(a)(4); Rule 32(i)(4)(B); Rule 60(a)(3) 20 I. In general 20 2. Public Proceeding Involving Release or Plea 24 3. Public Proceeding Involving Sentencing 24 a. Victims have no right to "speak" in all instances. 24 b. The defendant has the right to notice and full opportunity to challenge victim status, victim impact statements, and victim testimony 25 c. Special issues with victim impact letters used by the government in child pornography Caen 27 d. Unduly prejudicial victim impact presentations 28 e. Victims do not have a right to litigate the sentence or make sentencing recommendations 29 f. Victims do not have a right to obtain the presentence report 30 E. "Reasonable Right to Confer with the Attorney for the Government," §3771(a)(5) 31 F. "Full and Timely Restitution As Provided in Law," §3771(a)(6); 2 EFTA01091404  Rule 32(c)(I)(B) 32 G. Proceedings "free from unreasonable delay," §377I(a)(7) 33 H. "Right to be Treated with Fairness and with Respect for the Victim's Dignity and Privacy," §3771(a)(8) 33 1. Decisions construing the right 33 2. The right is impermissibly vague 34 VI. Special Procedures Created Solely by the Rules 35 A. Rule 12.1(b) 35 1. The amendment is unconstitutional 35 a. A notice of alibi rule that requires the defendant to disclose information but does not guarantee reciprocal discovery violates the Due Process Clause 35 b. Even when the defendant has not been required to disclose any information, placing the burden on the defendant to establish need for a witness's address violates the Due Process Clause 36 c. The amended rule infringes a weighty right of the accused, fails to advance any legitimate procedural purpose, and is arbitrary and disproportionate to its stated purposes 37 2. The amendment violates the Rules Enabling Act 39 3. Apply the rule to avoid violating the defendant's rights 39 a. "Need" means you don't have it 39 b. The alleged victim or the government must establish that disclosure of the information would create a "risk" to the victim's safety, such that an alternative procedure is necessary 40 c. Any "reasonable procedure" cannot infringe on the defendant's rights 41 B. Rule I7(c)(3) 42 1. Before the Amendment 42 2. After the Amendment 43 3. Constitutional Principles 44 a. Defendant's Right to Obtain Evidence. 44 b. Defendant's Right to Obtain Evidence Without Disclosure to the Witness or the Government 45 c. Defendant's Right to Obtain Evidence that is "Personal or Confidential" or that May Offend Alleged Victim's "Dignity and Privacy" 46 4. Step by Step Process for Subpoenaing Information About a Victim. 47 a. Is the information "personal or confidential?" 47 b. If the information is personal or confidential, apply for a court order ex pane 48 c. Make an ex pane showing of "exceptional 3 EFTA01091405  circumstances" to preclude notice 49 d. If no "exceptional circumstances" exist 49 e. The applicable standard is relevance, admissibility and specificity 50 f. Oppose the government's assertion of "standing" to challenge a subpoena 51 g. A Rule 17(c) subpoena can be used to obtain information to rebut a victim impact statement at sentencing 52 C. Rule 18 52 D. Rule 32(d)(2XB) 53 VII. General Procedures 54 A. Who is a "Victim" and Who May "Assert" or "Assume" Victim Rights" 54 I. Who is a "victim?" 54 2. Who may "Assert" or "Assume" Victim Rights" .57 B. How Must Victim Rights Be Asserted and Decided" 58 C. Where May the Victim Assert Rights" 59 D. Multiple Victims 59 E Mandamus Procedures 59 F. Relief for Victim if Mandamus Granted 60 G. Motion to Re-Open Plea or Sentence 61 H. Defendant's Right to Relief 63 1. What Does "Rights Described in These Rules" Mean? 64 VIII. Reach Out to Victims and Make Amends in a Constructive Way 64 Appendix 66 Rule 1(6)(11) 66 Rule 12.1 66 Rule 17 68 Rule 18 69 Rule 32 70 Rule 60 72 L Overview of CVRA and New Rules The CVRA, enacted on October 30, 2004. lists the following eight "rights." (1) "to be reasonably protected from the accused" (2) "to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused" (3) "not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding" (4) "to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding" (5) the "reasonable right to confer with the attorney for the Government in the case" 4 EFTA01091406  (6) "to full and timely restitution as provided in law" (7) "to proceedings free from unreasonable delay" (8) "to be treated with fairness and with respect for the victim's dignity and privacy" 18 U.S.C. § 3771(a). Certain limitations on these rights and the CVRA's procedural provisions are scattered throughout subsections (b)(I), (c), (d) and (e). Notably, the CVRA allows a victim or alleged victim to file a petition for mandamus in the court of appeals if he or she asserted a "right" by motion in the district court and the judge denied the "relief sought," no matter how unreasonable. The court of appeals must decide the petition within 72 hours. 18 U.S.C. § 3771(d)(3). The CVRA also allows a "motion to re-open" a plea or sentence if a victim asserted a "right to be heard" before or during a public proceeding involving a plea or sentencing, that right was denied, a petition for mandamus was filed within 10 days, and the petition was granted. 18 U.S.C. § 3771(d)(5). Effective December I. 2008, the following rules changes went into effect: • Rule 1(b)(11) incorporates the statutory definition of "victim." • Rule 12.1(b) appears to alter the right to reciprocal discovery alibi cases. • Rule I7(c)(3) requires a court order for a subpoena for documents containing "personal or confidential" information, permits ex pane applications, and permits notice and an opportunity to challenge the application as unreasonable or oppressive only if to do so would not prematurely disclose defense strategy, would not result in the loss or destruction of evidence, and no other "exceptional circumstances" exist that would interfere with a constitutional and orderly adversary procedure. • Rule 18 requires the court to consider the convenience of spectator victims in setting the place of trial within the district. • Rule 32 inserts the "right to be reasonably heard" at sentencing, removes the requirement that victim impact information be "verified" and "stated in a nonargumentative style," and requires a pre-sentence investigation if the law "permits" restitution. • Rule 60(a) restates the procedural rights set forth in § 3771(a)(2), (3) and (4). • Rule 60(b), entitled "Enforcement and Limitations," restates some of the procedural provisions of the CVRA, and leaves it to the courts and the parties to ensure an orderly adversary procedure. Rules that create, or appear to create, rights beyond the plain terms of the CVRA may invite mandamus petitions that would not otherwise be filed. Such rules fail in their overall purpose "to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay."2 More importantly, if the result of such rules is to abridge a substantive right of the defendant, or to change a substantive outcome for the defendant, the rule is both unconstitutional and violates the Rules Enabling Act. 2 28 U.S.C. § 331. 5 EFTA01091407 II. Rulemaking Background The impetus for these amendments came from then Judge Cassell, a well-known victim rights advocate who was then Chair of the Criminal Law Committee of the Judicial Conference.3 In March 2005, Judge Cassell submitted, in his personal capacity, twenty-five proposed rules changes that would have done through the rules what Congress did not do in the CVRA, i.e., replace the adversary system with a three-party/two-against-one system.' In April 2005, the Criminal Rules Advisory Committee ("Committee") appointed a CVRA Subcommittee ("Subcommittee"). The Committee initially questioned whether any amendments should be made, since the CVRA "is self-executing" and rules "cannot alter or add force to those statutory provisions," but concluded that "carefully drafted rule amendments to implement the specific rights set out in the Act would be appropriate and helpful."3 The Subcommittee determined to '6 take a "conservative" approach and "not create rights beyond those provided by the Act; and not to use "general language" stating that victims have a right "to be treated with fairness" as a "springboard for a variety of rights not otherwise provided for in the CVRA."7 From the beginning and through the end of the process, the Committee stated that it did not intend to and did not upset the careful balance of the CVRA, abridge defendants' rights, or enlarge or create new victim rights, and in particular that it did not create any procedures based on the CVRA's right to be treated fairly and with respect.8 The Judicial Conference has strived to make the rulemaking process "the most thoroughly open, deliberative, and exacting process in the nation for developing substantively 'Judge Cassell has since left the bench to litigate on behalf of victims and to teach about victim rights. 'Criminal Rules Docket (Historical) at 33, http://www.uscourts.gov/rulest2008-Criminal-Sueeestions- Docket-Historical.pdf. 5 See Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure at 23 (September 2007). http://www.uscouns.gov/rules/Reports/ST09-2007.pdf. 6 Advisory Committee on Rules Minutes at 13, October 24 & 25, 2005, http://www.uscourts.govirulesiMinutes/CRI0-2005-min.pdf. 7 See Memorandum to Criminal Rules Advisory Committee from CVRA Subcommittee at 1-2 (Sept. 19. 2005). included in http://www.uscouns.gov/rules/Agenda%20Books/CR2005-10.pdf. 8 See Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure at 20, 22 (September 2007), http://www.uscourts.fov/rules/Reoons/ST09-2007.pdf; Report of the Advisory Committee on Criminal Rules to Standing Committee on Rules of Practice and Procedure at 6. May 19. 2007 (revised July 2007), available at http://www.uscourts.gov/rules/jc09- 2007tApp B CR JC Report 051907.pdf; Report of the Advisory Committee on Criminal Rules to Standing Committee on Rules of Practice and Procedure at 2 (Aug. 1, 2006). http://www.uscourts.gov/rules/Excerpt CRRepon1205 Revised 01-06.pdf; Report of the Advisory Committee on Criminal Rules to the Standing Committee on Rules of Practice and procedure. December 8, 2005. http://www.uscourts.gov/rulesiReports/CR12-2005.pdf. 6 EFTA01091408 neutral rules."9 The Committee published for comment initial versions of two new rules (Rule 1(6)(11) & 60) and amendments to four existing rules (Rules 12.1(b), 17(c)(3), 18 & 32) in August 2006, and held a public hearing on these proposals in January 2007.10 The Federal Defenders and NACDL strenuously opposed most of these proposals and offered alternative language for others." By then, Judge Cassell had proposed nearly thirty rule changes.'2 Senator Kyl, the primary sponsor of both a failed victim rights constitutional amendment and the CVRA, followed up with a letter indicating that legislation would follow if the Committee did not implement his and Judge Cassell's interpretation of the CVRA through the rules.11 Representatives Poe and Costa, co•chairs of the Congressional Victims' Rights Caucus, also wrote, stating, in what was either a Freudian slip or a typographical error, that the CVRA gave victims the right "to be reasonably protected from the rights of accused."" The Committee took note of the letters from these congressmen, especially Senator Kyl's, while also noting the substantial "criticism that the proposed rules went too far, tipping the 15 adversarial balance and depriving the defense of critical rights. "'The package of amendments °Peter G. McCabe. Renewal of the Federal Rulemaking Process. 44 Am. U. L. Rev. 1655, 1656 (1995) (internal quotation marks omitted), quoting Committee on Long Range Planning. Judicial Conference of the U.S., Proposed Long Range Plan for the Federal Courts recommendation 30, at 54 (2d prig. 1995). 10 Criminal Rules Docket (Historical) at 33. http://www.uscourts.gov/rules/2008-Criminal-Suggestions- Docket-Historical.pdf. " Federal Defenders' Testimony and Comments on Federal Rules of Criminal Procedure Published for Comment in August 2006, http://www.uscourts.nov/rules/CR%20Comments%202006/06-CR-003.pdft Comments of NACDL Concerning Proposed Amendments to Federal Rules of Criminal Procedure Published for Comment in August 2006, http://www.uscourts.gov/rules/CR%20Comments%202006/06- CR-010.pdf; Transcript of Public Hearing. January 26. 2007, http://www.uscourts.gov/rules/CR_Hearing_012607.pdf. 12 Paul G. Cassell, Treating Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure (draft of January 16, 2007). submitted as written testimony, http://www.uscourts.gov/rules/CR%20Comments%202006/06-CR-002.pdf. 13 Letter from Senator Jon Kyl to the Honorable David Levi. Chairman. Committee on Rules of Practice and Procedure. February 16, 2007, http://www.uscourts.gov/rules/CR%20Comments%202006/06-CR- 026.pdf. Attached to the letter were Senator Kyl's floor statements. 14 See Letter from Representatives Poe and Costa to Rules Committee. February 8, 2007. http://www.uscourts.gov/rules/CR%20Comments%202006/06-CR-027.pdf. 16 See Report of the Advisory Committee on Criminal Rules to Standing Committee on Rules of Practice and Procedure at 2, May 19. 2007 (revised July 2007), available at http://www.uscourts.gov/rules/jc09- 2007/Ann B CR JC Report 051907.ndf. See also Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure at 22 (September 2007), http://www.uscourts.gov/rules/Repons/ST09-2007.pdf. 7 EFTA01091409 was revised to account for some of the concerns raised during the public comment." 16 Not satisfied that the Committee had gone far enough, Senator Kyl introduced Judge Cassell's proposals as direct amendments to the rules in S. 1749, the Crime Victims' Rights Rules Act of 2007. The bill had no cosponsors and died in committee. 111. Constitutional Background A. The CVRA Keeps The Two-Party Adversary System and Defendants' Constitutional Rights Intact. Congressional Floor Statements to the Contrary Cannot Alter the Statute Congress Voted Into Law or the Constitutional Framework. The Framers created a two-party adversary system, with a public prosecutor, a criminal defendant and a neutral judge. The Framers did not intend that the rights of the accused would be degraded by or subordinated to competing rights of victims. Nor did they envision that prosecutors would gain an advantage over the accused in the name of victims, or that judges' impartiality would be compromised by an obligation to enforce victim rights against the accused. Congress enacted the CVRA after a victim rights constitutional amendment failed.17 The proposed constitutional amendment would have given victims rights at least equal to defendants' constitutional rights. It stated that "victims' rights 'shall not be denied ... and may be restricted only as provided in this article."Ig The fundamental objection to the victim rights constitutional amendment was that it would have replaced the two-party adversary system the Framers created with a three-party system in which criminal defendants would face both the public prosecutor and one or more private prosecutors with rights equal to or greater than the rights of the accused. The opposition argued that the "colonies shifted to a system of public prosecutions because they viewed the system of private prosecutions as 'inefficient, elitist, and sometimes vindictive,— and that "the Framers believed victims and defendants alike were best protected by the system of public prosecutions that was then, and remains, the American standard for achieving justice."19 Further, they argued, "we have historically and proudly eschewed private criminal prosecutions based on our common sense of democracy,"2° and "Never before in the history of the Republic have we passed a constitutional amendment to guarantee rights to a politically popular group of citizens at the expense of a powerless minority," or "to guarantee rights that intrude so technically into such a wide area of law, and with such serious implications for the Bill of Rights."21 16 See Advisory Committee on Criminal Rules Minutes at 8. October 1-2. 2007. http://www.uscourts.gov/rules/Minutes/CR10-2007-min.pdf. 17 150 Cong. Rec. at S4262 (Apr. 22, 2004) ("It is clear to me that passage of a Constitutional amendment is impossible at this time.") (statement of Sen. Feinstein). 16 See S. Rep. No. 108-191 at 68-69 (2003) (minority views). 2° It at 70. 21 1d. at 56. 8 EFTA01091410  In passing the CVRA instead of the constitutional amendment, Congress intended to preserve the system the Framers created -- with a public prosecutor charged with acting in the public interest, a criminal defendant with the full panoply of constitutional rights, and a neutral judge. See United States v. Turner, 367 F.Supp.2d 319, 333 n.13 (E.D.N.Y. 2005) (The "CVRA strikes a different balance [than the failed constitutional amendment], and it is fair to assume that it does so to accommodate the concerns of those legislators [who opposed the amendment]. ... In particular, it lacks the language that prohibits all exceptions and most restrictions on victims' rights, and it includes in several places the term 'reasonable' as a limitation on those rights."). As Senator Durbin explained: By enacting legislation rather than amending the Constitution, our approach today also addresses my concerns regarding the rights of the accused. The premise of criminal justice in America is innocence until proven guilty, and our Constitution therefore guarantees certain protections to the accused.... Although these protections for the accused sometimes are painful for us to give, they are absolutely critical to our criminal justice system. When the victim and the accused walk into the courtroom, both are innocent in the eyes of the law, but when the trial begins, it is the defendant's life and liberty that are at stake! Thus, it remains that only the defendant has constitutional rights in criminal proceedings. Victims and alleged victims do not have constitutional rights. Nor are they parties. Under the CVRA, victims "are not accorded formal party status, nor are they even accorded intervenor status as in a civil action. Rather, the CVRA appears to simply accord them standing to vindicate their rights as victims under the CVRA and to do so in the judicial context of the pending criminal prosecution of the conduct of the accused that allegedly victimized them." United States v. Rubin, 558 F. Supp. 2d 411, 417 (E.D.N.Y. 2008). A court cannot "compromise[e] its ability to be impartial to the government and defendant, the only true parties." Id. at 428. See also United States v. Hunter, 548 F.3d 1308, 1311 (10ih Cir. 2008) (victim has no right to appeal a defendant's sentence because a victim is not a party). Beware of victim advocates citing to the floor statements of Senator Kyl, the primary sponsor of the failed constitutional amendment and of the CVRA, for interpretations of the CVRA that differ from what Congress intended. For example, Senator Kyl stated that the right to be treated with "fairness" and with "respect for dignity" is synonymous with a right to "due process."23 "Floor statements from two Senators [who sponsored the bill] cannot amend the clear and unambiguous language of a statute." Barnhart v. Sigmon Coal Co., Inc. 534 U.S. 438, 457 (2002). Floor statements may "open the door to the inadvertent, or perhaps even planned, undermining of the language actually voted on by Congress and signed into law by the President," Regan v. ►Vald, 468 U.S. 222, 237 (1984), and this may be particularly true of a bill's zz See 150 Cong. Rec. S4275 (April 22, 2004) (statement of Sen. Durbin). 23 See 150 Cong. Rec. SI0911 (Oct. 9, 2004) (statement of Sen. Kyl); 150 Cong. Rec. S4260-01, S4264 (April 22, 2004) (statement of Senator Kyl). 9 EFTA01091411 sponsor disappointed in some respect with the final bill. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2766 n.10 (2006). "The only reliable indication of that intent-the only thing we know for sure can be attributed to all of them-is the words of the bill that they voted to make law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 390.91 (2000) (Scalia, J., concurring) (emphasis in original). The plain statutory language controls. See Crandon v. United States, 494 U.S. 152, 160 (1997); Whioield v. United States, 543 U.S. 209, 215 (2005); Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 130.36 (2002); United States v. Gonzales, 520 U.S. I, 6 (1997); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Further, relying on floor statements to expand upon the text would violate the constitutional requirements for enactment, bicameralism and presentment. U.S. Const. art. I, § 7; INS v. Chadha, 462 U.S. 919, 945 (1983). B. Defendants' Constitutional Rights Trump Victims' Statutory Rights. Because a defendants' constitutional rights always trump a victim's statutory rights, see, e.g., Davis v. Alaska, 415 U.S. 308, 319 (1974) ("the right of confrontation is paramount to the State's policy of protecting a juvenile offender"), no provision of the CVRA or a related rule may infringe on any right of the defendant. Defendants have a number of constitutional rights. Among them are the rights to an impartial judge, In re Murchison, 349 U.S. 133 (1955); to be presumed innocent, and to be found guilty only based on proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970); the right to confront adverse witnesses, Coy v. Iowa, 487 U.S. 1012 (1988); the right to cross- examine adverse witnesses, Cranford v. Washington, 541 U.S. 36 (2004); the right to compulsory process, Taylor v. Illinois, 484 U.S. 400 (1988), Washington v. Texas, 388 U.S. 14, 19 (1967); the right to present a complete defense, Crane v. Kentucky, 476 U.S. 683, 690-91 (1986); the right to effective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984); the right to obtain favorable evidence that is relevant to guilt or punishment, Kyles v. Whitley, 514 U.S. 419 (1995); the right to an impartial jury, United States v. Gaudin, 515 U.S. 506 (1995); and the right to notice and opportunity to challenge any information that may be used to deprive the defendant of life, liberty or property in sentencing. See Rita v. United States, 127 S. Ct. 2456, 2465 (2007); Burns v. United States, 501 U.S. 129, 137-38 (1991); Gardner v. Florida, 430 U.S. 349, 351, 358 (1977); United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). The right to an impartial judge is one that the CVRA and some of the rules can implicate to an unusual degree. See In re Murchison, 349 U.S. 133, 136 (1955) (a "fair trial in a fair tribunal is a basic requirement of due process"); Tumey v. State of Ohio, 273 U.S. 510, 532 (1927) ("Every procedure which would offer a possible temptation to the average man as a judge ... which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law."). The threat of a disruptive mandamus action may place pressure on judges to favor victims' rights over defendants' rights. Indeed, according to Senator Kyl, the mandamus provision was intended to "encourage(' courts to broadly defend the victims' rights." See also 150 Cong. Rec. 510910, S10912 (Oct. 9, 2004). But judges cannot act as a victim's advocate and the defendant's adversary. Judges must protect defendants' rights. See Erin C. Blondel, Victims' Rights in an Adversary System, 58 Duke L. J. 237, 261, 265, 269- 10 EFTA01091412 70 (2008). Judges must avoid any reading of a rule that places them in the conflicted position of "defending" victims' statutory interests against defendants' constitutional rights. See United States v. Rubin, 558 F. Supp.2d 411, 428 (E.D.N.Y. 2008) (this is 'precisely the kind of dispute a court should not involve itself in since it cannot do so without potentially compromising its ability to be impartial to ... the only true parties."). IV. The Rules Must Be Interpreted to Avoid Abridging Defendants' Rights or Enlarging Victims' Rights; If No Such Interpretation is Possible, the Rule is Invalid. When construing the rules, consider the avoidance canon, constitutional limits on rulemaking, and the Rules Enabling Act. Both the Constitution and the Rules Enabling Act prohibit the Rules Committee from promulgating rules that abridge defendants' constitutional or statutory rights or that enlarge victims' statutory rights, and prevent the courts from interpreting the rules in such a manner. How is it possible for a rule to run afoul of the Constitution or the Rules Enabling Act when the Supreme Court approved it? The Court ordinarily depends on adversary testing of concrete disputes to sharpen its understanding of difficult questions.24 It approves the rules in the abstract without adversary testing. The Court may not be aware of problematic applications of a rule, or it may not feel the need to disapprove a rule unless the lower courts interpret it in a way that violates the Constitution or the Rules Enabling Act. For example, the Rules Committee received extensive public comment opposing Rules 12.1(b), 17(c)(3) and 18 because they posed problems under the Constitution or the Rules Enabling Act, but the Committee's report to the Supreme Court regarding controversial rules made no mention of those rules.2s According to other Committee reports, the Committee did not intend that any of the amendments would transgress the bounds of the Constitution or the Rules Enabling Act. See Part II, supra; Part IV.D, infra. A. Avoidance Canon Like any law, a rule of procedure must be interpreted, if possible, to avoid violating the Constitution. See Martinez v. Clark, 534 U.S. 371, 381 (2005); Jones v. United States, 526 U.S. 227, 239-40 (1999). Similarly, a rule must be interpreted to avoid violating the Rules Enabling Act. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 842, 845.48 (1999); Setntek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503.04 (2001). The Rules Committee's expressed understanding in promulgating a rule can aid in a limiting construction. For example, in interpreting a civil procedure rule that might have violated both the Constitution (the Seventh Amendment and the Due Process Clause) and the Rules Enabling Act, the Supreme Court adopted a limiting construction, stating that "this 24 See Federal Election Comm. v. Akin, 524 U.S. II, 20-21 (1998); GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 382-83 (1980). 25 See Proposed Rule Amendments of Significant Interest, http://www.uscouns.gov/rules/supct0108/Controversial report Sup Ct 2007.pdf. 11 EFTA01091413 limiting construction finds support in the Advisory Committee's expressions of understanding, minimizes potential conflict with the Rules Enabling Act, and avoids serious constitutional concerns." Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999). If no limiting construction is possible to save the rule from violating the Constitution or the Rules Enabling Act, the rule is invalid, Holmes v. South Carolina, 547 U.S. 319 (2006), and the prior rule or practice applies, assuming it is valid. Ortiz, 527 U.S. at 845. B. The Constitution A rule that abridges a weighty interest of the accused, and that does not serve a legitimate procedural purpose or is arbitrary or disproportionate to its purpose, is invalid. For example, in Holmes v. South Carolina, 547 U.S. 319 (2006), the Supreme Court struck down a state evidence rule that prohibited the accused from introducing evidence of a third party's guilt if the prosecution introduced forensic evidence that, if believed, strongly supported a guilty verdict. The right to "present a complete defense .. . is abridged by evidence rules that 'infringle] upon a weighty interest of the accused' and are 'arbitrary' or 'disproportionate to the purposes they are designed to serve."' Id. at 324-25 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998) and Rock v. Arkansas, 483 U.S. 44, 58 (1987)). The Court observed that the Constitution "prohibits the exclusion of defense evidence under rules that serve no legitimate purpose ... in the criminal trial process ... or that are disproportionate to the ends that they are asserted to promote." Id. at 327. The Court found that the rule was arbitrary in that it did not rationally serve any procedural purpose. Id. at 331. In United States v. Scheffer, 523 U.S. 303 (1998), the Court upheld a military rule of evidence that flatly excluded polygraph evidence. The Court found that the rule served three "legitimate interests in the criminal trial process": reliability, preservation of the jury's function in determining credibility, and avoiding litigation over issues other than the guilt or innocence of the accused. Id. at 309.15. The Court found that the rule did not affect a significant interest of the accused because it did not exclude any evidence or testimony about the facts of the case, but only bolstered the defendant's credibility. Id. at 317. In ►Vardirts v. Oregon, 412 U.S. 470 (1973), the Court struck down a notice of alibi rule that did not guarantee reciprocal discovery to the defendant. While the state's "interest in protecting itself against an eleventh-how defense is both obvious and legitimate," id. at 471 n.1, "in the absence of a strong showing of state interests to the contrary, discovery must be a two- way street. The State may not insist that trials be run as a 'search for truth' so far as defense witnesses are concerned, while maintaining 'poker game' secrecy for its own witnesses." Id. at 475. C. The Rules Enabling Act The Supreme Court has no jurisdiction to promulgate rules except through a delegation of congressional power. Congress, not the Supreme Court, has the power to regulate practice and procedure in the federal courts. It "may exercise that power by delegating to [the courts] authority to make rules not inconsistent with the statutes or Constitution of the United States." 12 EFTA01091414 Sibbach v. Wilson & Co., 312 U.S. I, 9-10 (1941). Congress, through the Rules Enabling Act, has delegated to the Supreme Court, acting on recommendations from the Judicial Conference,26 "the power to prescribe general rules of practice and procedure." 28 U.S.C. § 2072(a). "Such rules shall not abridge, enlarge or modify any substantive right." Id., § 2072(b); Oniz v. Fibreboard Corp., 527 U.S. 815, 842, 845.48 (1999); Semtek Intern. Inc. v. LockheedMartin Corp., 531 U.S. 497, 503.04 (2001). In sum, there are two requirements: (1) every rule must be procedural; and (2) if a rule is procedural, it also must not abridge, enlarge or modify any substantive right. If possible, a rule must be interpreted to avoid violating these jurisdictional limitations. Semtek, 531 U.S. at 503- 04; Ortiz, 527 U.S. at 845. If a limiting construction is not possible, the rule is invalid. 1. A rule's purpose must be to regulate procedure without regard to substantive interests. The Rules Enabling Act is "restricted in its operation to matters of pleading and court practice and procedure." Sibbach., 312 U.S. at 10. The test is whether it "really regulates procedure, -- the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Id. at 13. The purpose of the rule must be "procedural," i.e., "concerned only with the most sensible way to manage a litigation process," "designed to make the process of litigation a fair and efficient mechanism for the resolution of disputes." John Hart Ely, The Irrepressible Myth ofErie, 87 Han. L. Rev. 693, 724, 726 & nn. 170 (1974). The purpose of a "procedural rule" must be "to achieve accuracy, efficiency, and fair play in litigation, without regard to the substantive interests of the parties," Sins v. Great Am. Life Ins. Co., 469 F.3d 870, 882 (10th Cir. 2006), much less the substantive interests of persons who are not parties. Under these authorities, a rule with the stated purpose of advancing a substantive interest of an alleged victim, such as the amendments to Rules 12.1 (reciprocal discovery of alibi) and 17 (restricting issuance of subpoenas). see Part VI.A & B, infra, is not "procedural." If possible, these rules must be interpreted as procedural only, i.e., concerned only with the most sensible way to manage a two-party adversary litigation process without regard to an alleged victim's substantive interests. If such a construction is not possible, the amendment cannot be applied. 2. A rule shall not abridge, enlarge or modify any substantive right. A "substantive right [is] a right granted for one or more nonprocedural reasons, for some purpose or purposes not having to do with the fairness or efficiency of the litigation process." Ely, The Irrepressible Myth ofErie, 87 Harv. L. Rev. at 725. A substantive reason is "concerned with something other than the way litigation is to be managed." Id. at 728. A substantive reason is one that "characteristically and reasonably affect's] . .. conduct" or "states of mind" beyond the litigation in the courtroom; an example of the latter is a statute of limitations, which fosters "the feeling of release, the assurance that the ordeal has passed." Id. at 725-26. 26 28 U.S.C. 1331. 13 EFTA01091415  The rules implementing the CVRA implicate two sets of "substantive rights": statutory rights of victims under the CVRA, which may not be "enlarged," and constitutional and statutory rights of defendants, which may not be "abridged." Even "procedurally neutral rules may affect substantive rights" and "may give a practical advantage to one type of litigant over another."27 The government does not have constitutional rights, and should not be given a practical advantage over defendants through rules created for victims. Many of the rights contained in the CVRA are substantive because they are not concerned with the way litigation is managed but with affecting conduct and feelings outside the litigation in the courtroom. The purpose of the right to be "reasonably protected from the accused" is to affect conduct outside the courtroom.28 The right to be treated with "respect for the victim's dignity and privacy" is aimed at improving victims' state of mind outside the litigation by preventing the "secondary traumatization" that victims sometimes experience "at the hands of the criminal justice system."29 The amendments to Rules 12.1(b) and 17(c)(3), which are said to "implement" these statutory rights, cannot be interpreted to "enlarge" them. Nor may any rule be interpreted in a way that abridges a defendant's constitutional rights, whether procedural or substantive. Defendants have a substantive constitutional right to life, liberty and property.3° See U.S. Const. Amend. V. Defendants also have many procedural constitutional rights, including the right to due process of law, the right to effective assistance of counsel, the right to confront and cross-examine witnesses, and the right to compulsory process. See U.S. Const. Amend. V, VI. According to a seminal article on the legislative history and interpretation of the Rules Enabling Act, Congress's concern that the rules not be used to abridge, enlarge or modify any substantive right extends to these procedural constitutional rights. Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L. Rev. 1015, 1169 (1982). Although it does not appear that the Supreme Court has interpreted a criminal rule under the Rules Enabling Act, it has interpreted a civil rule to avoid conflict with the Act. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the district court had read Fed. R. Civ. P. 23(b)(1)(B) as allowing it to certify a mandatory settlement•only class under a "limited funds" rationale, which meant that all members of the class would receive a pro rata share of the settlement fund, and that absent members, who were by definition unidentifiable at the time the class was certified, had no ability to consent or right to abstain. The Court rejected this interpretation to avoid conflict with the Rules Enabling Act, because it may have abridged the rights of absent class members to pursue individual tort claims at law. Id. at 845. Instead, the Court interpreted the rule in a manner that would keep it "cl