Victims' Rights in an Adversary System

By Blondel, Erin C. | Duke Law Journal, November 2008 | Go to article overview
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Victims' Rights in an Adversary System

Blondel, Erin C., Duke Law Journal


The victims' rights movement argues that because the outcome of criminal prosecutions affects crime victims, the justice system should consider their interests during proceedings. In 2004, Congress passed the Crime Victims' Rights Act (CVRA), giving victims some rights to participate in the federal criminal justice system. This Note probes both the theoretical assumptions and practical implications of the CVRA. It demonstrates that the victims' rights movement revisits a long-acknowledged tension between adversary adjudication and third-party interests. It shows, however, that American law has resolved this tension by conferring party or quasi-party status on third parties. Despite some pro-victims rhetoric, Congress reaffirmed the public-prosecution model when it passed the CVRA. Instead of making victims parties or intervenors in criminal prosecutions, the CVRA asks courts and prosecutors to vindicate victims' interests. This unusual posture creates substantial conflicts for courts and prosecutors and undermines defendants' rights. To avoid these consequences, this Note argues, courts can interpret the CVRA's substantive rights narrowly. Rather than reading the CVRA as conferring broad rights on crime victims, courts should interpret the statute to simply require institutional courtesy toward crime victims. This interpretation reflects victims' nonparty status and preserves the rights and responsibilities of courts, prosecutors, and defendants.


In Marbury v. Madison (1) Chief Justice Marshall wrote, "The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion." (2) Two centuries later, in 2004, Congress disrupted that division of power when it passed the Crime Victims' Rights Act (CVRA), (3) forcing courts both to step beyond deciding the rights of individuals and to second-guess executive discretion. With this statute, Congress may have transformed federal criminal prosecutions.

Prior to the CVRA, for example, the prosecution of Dan Rubin for securities fraud would have been unremarkable. In March 2007, federal prosecutors and Rubin's defense counsel negotiated a plea bargain, which the district court accepted. (4) But two of Rubin's victims, Dixie Chris Omni (Omni) and RJP Investment Company (RJP), did not like the plea agreement. Omni and RJP thought that Rubin should pay more restitution and prosecutors should provide more assistance with their civil suit against Rubin. (5) In short, prosecutors wanted to resolve the case, but the victims wanted to recover their losses.

Over the objection of the government and Rubin's defense counsel, Omni and RJP petitioned the district court based on the CVRA to vacate the plea agreement and modify Rubin's restitution order. (6) They also argued that prosecutors violated their statutory right to be treated with respect when the government contended that Omni and RJP filed the petition merely to improve their bargaining position in the civil lawsuit. (7)

The district judge chafed at the victims' request to second-guess the government and place their interests ahead of those of the parties. He refused to "prohibit[] the government from raising legitimate arguments ... simply because the arguments may hurt a victim's feelings." (8) The court also expressed concern that "such a dispute.... potentially compromis[es] its ability to be impartial to the government and defendant, the only true parties to the trial." (9)

United States v. Rubin (10) demonstrates the procedural and practical problems that the CVRA creates for participants in the federal criminal justice system. Traditionally, American courts have followed the adversary system of litigation, which grants parties broad autonomy to vindicate their rights and interests before an impartial court. The adversary system has informed the constitutional, procedural, and ethical rights and obligations of the system's three primary participants: courts, prosecutors, and defendants.

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