In recent years, policy makers have sought to give victims a greater voice in the criminal justice system. On the federal level, victims have been given the right to notice about key developments in criminal cases, consultation about a prosecutor's plea and sentencing decisions, and compensation in the case of financial injury. In 2004, Congress passed the Crime Victim Rights Act (CVRA), which specified eight rights of victims, some of which were already part of federal law. Unlike earlier legislation, the CVRA imposed on federal courts the obligation to “ensure” that victims are “afforded” these rights and established procedures for victims to assert their rights in the district court and appeal denials by petitioning for writs of mandamus.

In this article, we discuss the basic provisions of the CVRA and court decisions interpreting its reach. We then consider application of the CVRA in white-collar cases. To be sure, advocacy by putative victims can exert influence on prosecutors and courts in a manner that complicates defense of a white-collar case. At the same time, the rights of putative victims may, on occasion, give rise to disclosures that assist the defense, as we discuss further below.

The CVRA

According to its legislative history, the CVRA was intended to address a perceived imbalance in the criminal justice system between the rights of defendants and victims. 150 Cong. Rec. S4260-01, S4262 (April 22, 2004). The CVRA confers on “crime victims” the following 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 public court proceedings, unless a victim's testimony would be materially altered by hearing other testimony at the proceeding; (4) to “be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding”; (5) to reasonably confer with the government's attorney; (6) to “full and timely restitution as provided in law”; (7) to “proceedings free from unreasonable delay”; and (8) to “be treated with fairness and with respect for the victim's dignity and privacy.” Codified at 18 U.S.C. §3771.

In 2015, the Justice for Victims of Trafficking Act amended the CVRA to give victims additional rights, including the right to be informed in a timely manner of a plea bargain or a deferred prosecution agreement before a formal charge was filed. Pub. L. 114-22, title I, §113(a), (c)(1), 129 Stat. 240, 241 (May 29, 2015).1 The 2015 law also resolved a circuit court split over the standard of review applicable to victims' petitions for writs of mandamus to enforce CVRA rights.

Judicial Interpretation

The CVRA defines “crime victim” as “a person directly and proximately harmed” by the “commission of a Federal offense,” but the law does not address whether courts should apply a presumption of innocence. 18 U.S.C. §3771(e); see also Attorney General Guidelines for Victim and Witness Assistance (2011 Ed. (Rev. May 2012)) (Attorney General Guidelines). In 2005, shortly after the law was enacted, Eastern District Magistrate Judge James Orenstein examined sua sponte the CVRA's notice requirements in United States v. Turner, a mail fraud case before the court for an initial appearance and bail determination based upon a criminal complaint. Judge Orenstein construed “crime victim” to mean “any person who would be considered a 'crime victim' if the government were to establish the truth of the factual allegations in its charging instrument.” 367 F. Supp. 2d 319, 326 (E.D.N.Y. 2005); accord United States v. Rubin, 558 F. Supp. 2d 411, 418-19 (E.D.N.Y. 2008) (Vitaliano, J.).