Last week, capping a five-year effort by Arizona crime victims' rights advocates, the Arizona Supreme Court amended its rules of criminal procedure to provide crime victims' rights throughout the criminal justice process. Because Arizona's decision is the first thorough integration of victims' rights in a state's rules of criminal procedure, it is worth attention. I hope that Arizona's approach will be followed by other states and, ultimately, by the drafters of the federal rules of criminal procedure.
Some background: Over the last several decades, many state legislatures and Congress have adopted constitutional and statutory reforms protecting crime victims' rights in the criminal justice process. Victims now commonly have the rights, for example, to notice of court hearings and be heard at hearings involving bail, plea, and sentencing (as I discuss here, here, and here).
But a challenge with enforcing these rights is making them part of day-to-day criminal justice processes. Often procedural steps are set out in the court rules–rules that were written at a time when crime victims were not part of the process. As a result, in too many cases, crime victims' rights are ignored because criminal practitioners do not see any reference to victims' rights in the criminal rules.
In 2005, I wrote about this problem of implementing crime victims' rights in connection with the Federal Rules of Criminal Procedure. I argued for a comprehensive revision of the federal rules to integrate crime victims' rights:
Crime victims are virtually absent from the Federal Rules of Criminal Procedure. The sixty federal rules comprehensively cover every aspect of federal criminal proceedings--from initial appearance through preliminary hearing, arraignment, acceptance of pleas, trial, and sentencing. Yet the rules substantively mention victims only once, briefly recognizing the right of some victims to speak at sentencing.
The federal rules can no longer leave victims unmentioned. In October 2004, Congress passed and President Bush signed into law the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act (CVRA). The CVRA transforms crime victims into participants in the criminal justice process by (among other things) guaranteeing them notice of court hearings, the right to attend those hearings, and the opportunity to testify at appropriate points in the process. These new victims' rights will reshape the federal criminal justice system and force significant changes to the Federal Rules of Criminal Procedure to reflect the victim's expanded role. This Article offers comprehensive proposals for changing the federal rules to both implement the CVRA and reflect sound public policy. The CVRA dictates changes like these to the Federal Rules of Criminal Procedure because only by integrating victims into the federal rules will Congress's goal of making victims participants in the process be fully realized.
I presented my proposed comprehensive rule changes to the Advisory Committee on Rules of Criminal Procedure. Ultimately, however, the Committee disagreed with my recommendations for a thoroughgoing revision of the federal criminal rules, opting instead for a single, brief rule covering victims' rights. The resulting rule—Rule 60—was, in my view, a desultory and limited effort to protect victims rights. The rule briefly recapitulated the federal statute (the Crime Victims' Rights Act) on victims' rights. The rule made little effort to explain how the CVRA's statutory rights applied in any particular federal proceeding. And, as a result, Rule 60 has been little-cited and has been of little use furthering victims' rights in federal criminal processes.
The same issue that exists in the federal criminal rules also exists in state criminal rules. Beginning in 2017, crime victims' rights advocates in Arizona began pressing for comprehensive revisions of the state's rules to incorporate crime victims' rights. The proposal went through various iterations along the way. In 2020, Arizona Voice for Crime Victims filed a comprehensive petition proposing a series of individual rule changes to Arizona's rules, protecting victims' rights at each stage of Arizona's criminal proceedings. As the process moved forward, in 2021, I testified in favor of changing Arizona's rules and in 2022 I wrote a letter in support of the changes. Arizona's prosecutors also supported the changes.
After reviewing the issues carefully, last week the Arizona Supreme Court adopted comprehensive rule changes, bringing the expansive changes to criminal rules that are necessary to make crime victims' rights part of the day-to-day architecture of criminal proceedings. In a twenty-five page order entered on December 8, 2022, the Arizona Supreme Court amended the state's rules of criminal procedure to specifically incorporate crime victims rights throughout the state's criminal justice proceedings. The Court's order briefly recounts the procedure history leading up to this rule change as follows:
On January 10, 2020, Colleen Clase on behalf of Arizona Voice for Crime Victims filed a petition, R-20-0031, proposing to amend the Rules of Criminal Procedure ("the Rules") to enhance the rights of victims under Arizona's rules of court. The petition in R-20-0031 proposed to fully integrate the rights guaranteed to victims under the Arizona Constitution and implementing legislation, which had previously been codified primarily in Rule 39 of the Rules, into the Rules as a whole. The petition proposed to relocate each specific victims' rights provision into the rule governing the applicable situation or proceeding. The avowed goal of this proposal was to assure that trial courts, litigants, and attorneys would be more aware of what victims' rights are mandated in each specific situation.
At its August 2020 Rules Agenda, the Court continued the petition in R-20-0031 "pending the work of a Restyling Committee to be formed to carry out this proposal's goal of integrating selected provisions of Rule 39 of the Rules of Criminal Procedure into other related provisions of the Rules of Criminal Procedure where they more logically belong and where they will safeguard the rights of victims in the criminal justice system."
Thereafter, the Committee on Criminal Rules Regarding Victims was empaneled to carry out the Court's mandate. On July 12, 2022, Justice John R. Lopez, as Chair, filed this petition, proposing amendments to over forty of the Rules. … The matter was circulated for public comment under an expedited schedule. …
IT IS ORDERED that the Rules of Criminal Procedure are amended in accordance with the attachment to this order, effective July 1, 2023.
The Court's order changes approximately 40 of the state's rules of criminal procedure. These changes usefully add victims' rights on a rule-by-rule basis rather than merely in one general victims' rights rule. As the Order adopting the rule explains: "The Court adopted Rule 1.3 and the section (v) provisions of these rules to give victims' rights greater visibility in the Criminal Rules. Integrating victims' rights, as reflected in the Arizona Constitution, Arizona statutes, and Rule 39, into these rules is an attempt to assure their application to the hearing or proceeding in which those rights arise, so that victims, judges, and attorneys are aware of those rights and victims' rights are not overlooked." It is important to underscore that the recent rule changes do not substantively expand crime victims' right. Instead, the changes simply place victims' rights within each rule where application issues might arise. Arizona is leading the way for what should become the conventional approach to drafting criminal rules–an approach that recognizes that crime victims have rights throughout criminal justice processes.
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