Yesterday was the effective date of new Rule 60 of the amended Federal Rules of Criminal Procedure. I remind you of this not because it’s cause for a party, but to prevent any potential embarrassment when you ask the judge to exclude the most significant witness against the defendant from the courtroom so that their testimony won’t be tainted by the other government witnesses. 

Historically, the “victim”, by whatever name he or she was known, was not permitted to sit in the courtroom and listen to the parade of government agents on the stand testify about the case.  This was to make sure that the victim didn’t alter his testimony to conform with that of the witnesses who preceded him.  After all, there is no one in the courtroom with a greater desire to convict then the victim, and most victims, absolutely certain that the defendant is the man who “did it to him,” will do anything to assure a conviction.

The parade of agents notwithstanding, it is the victim’s testimony that closes the deal.  The victim identifies the defendant as the one who did it, with sufficient drama and certainty that no one could doubt.   The victim describes in chilling detail the defendant’s cruelty, avarice, or malice, so that the jury learns to hate the defendant as much as the victim does.  The other witnesses are the appetizer.  The victim is the main course.

For this reason, we isolate the victim from the other witnesses, preventing the victim from listening to their testimony and then altering his own to match it.  The victim’s untainted testimony, free from modification, is what provides the integrity of the testimonial and adversarial process; it either stands up on its own or falls.  But this quaint notion, I’m afraid, is now an anachronism.

Rule 60 provides:

(2) Attending the Proceeding. 

The court must not exclude a victim from a public court proceeding involving the crime, unless the court determines by clear and convincing evidence that the victim’s testimony would be materially altered if the victim heard other testimony at that proceeding. In determining whether to exclude a victim, the court must make every effort to permit the fullest attendance possible by the victim and must consider reasonable alternatives to exclusion. The reasons for any exclusion must be clearly stated on the record.

The generic rationale for excluding victims in every trial will no longer suffice, and the new test, that the defense must prove by “clear and convincing evidence  that the victim’s testimony would be materially altered if the victim heard other testimony at that proceeding,” is essentially impossible to meet.  There is little possible basis to contend that one particular victim would be specifically inclined to alter the testimony.  How can you prove that someone else would almost assuredly lie?

The proponents of victims’ rights, like Judge/Professor Paul Cassell who testified in favor of these changes, has carefully crafted the reasoning to evoke a tear.  This has been a topic of discussion here numerous times before.

Crime victims are absent from the Federal Rules of Criminal Procedure. Yet this is not because victims lack vital interests in criminal cases. As the CVRA recognizes, victims have vital concerns throughout the criminal process. This section recounts the absence of victims from the federal criminal rules, then contrasts that absence with the aims of the victims’ rights movement. The movement has argued successfully before state legislatures and Congress for the recognition of crime victims’ rights-with these efforts culminating in the passage of the CVRA, protecting crime victims’ rights in the federal system.

It sounds so kind and thoughtful to demonstrate concern for the victims, those “forgotten” people in the criminal justice system.  But the argument is wrong.  The victims are very much included, as the witnesses who provide the critical testimony against the defendant.  They are the central focus of the trial.  They are at the epicenter of the system.  The problem is, to victims rights advocates, that they aren’t there on equal footing as the other two players in the adversary system.

They shouldn’t be.  The prosecution does not represent victims, and it shouldn’t.  The defendant should not have two independent adversaries, and he shouldn’t.  The existence and deployment of criminal laws is not to vindicate personal rights of any individual victim, but to reflect society’s hedge against criminal conduct. 

But Congress, dear Congress, in passing the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act (yes, that’s the complete name of the CVRA), could not help itself from enjoying the political gain from appealing to the needs of victims.  Who could say “no” to victims?  This was a political slam dunk.

The only problem is that new Rule 60 creates a new victim, one that no one was concerned about at the time.  The integrity of the criminal justice system.

So when you rise to argue to the jury that the testimony of the victim has been irreparably tainted by him sitting in the courtroom, listening intently to the testimony preceding him, and tailoring his testimony to match up perfectly with that of earlier witnesses, anticipate the objection.  Expect the “sustained”, or at least the cautionary instruction that the victim is permitted as a matter of law to be present for the testimony.  After all, why concern yourself with the legitimacy of the victim’s testimony when there are emotions to be played? 

So don’t be surprised when you see the victim sitting in the front row throughout the trial.  It’s his right.  That it comes at the expense of the defendant’s right to a fair trial is old news, as of yesterday.