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105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-28
VICTIM ALLOCUTION CLARIFICATION ACT OF 1997
March 17, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. McCollum, from the Committee on the Judiciary, submitted the
R E P O R T
[To accompany H.R. 924]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 924) to amend title 18, United States Code, to give
further assurance to the right of victims of crime to attend
and observe the trials of those accused of the crime, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Committee Consideration.......................................... 7
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 7
Committee on Government Reform and Oversight Findings............ 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Estimate............................. 7
Constitutional Authority Statement............................... 8
Section-by-Section Analysis and Discussion....................... 8
Agency Views..................................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 10
Dissenting Views................................................. 12
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Victim Allocution Clarification Act
SEC. 2. RIGHTS OF VICTIMS TO ATTEND AND OBSERVE TRIAL.
(a) In General.--Chapter 223 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 3510. Rights of victims to attend and observe trial
``A United States district court shall not order any victim of an
offense excluded from the trial of a defendant accused of that offense
because such victim may or will, during the sentencing hearing--
``(1) exercise the right to make a statement or present any
information in relation to the sentence at the imposition of
``(2) testify as to the effect of the offense on the victim
and the victim's family.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 223 of title 18, United States Code, is amended by adding at
the end the following new item:
``3510. Rights of victims to attend and observe trial.''.
(c) Effect on Pending Cases.--The amendments made by this section
shall apply in cases pending on the date of the enactment of this Act.
Purpose and Summary
In 1994, Congress amended the Federal Rules of Criminal
Procedure to provide that a victim would have the right to make
a statement to the court in a non-capital case, at the time of
sentencing, in order to better ensure that the interests of
victims of crime would be known to sentencing judges. Also in
that year, Congress authorized the government, after a guilty
verdict is returned in a capital case, to call victims and
victims' family members to testify during the post-verdict
sentencing hearing. This testimony may be in connection with
any aggravating factors that the government wishes to prove, or
to rebut evidence of mitigating factors that the convicted
defendant is attempting to prove. This so-called ``victim
impact'' testimony often describes the effect of the crime on
the victim or the victim's family. The Supreme Court has upheld
the government's right to present victim impact testimony
against constitutional challenge.
Recently the Committee has learned that, under the Federal
Rules of Evidence, some federal trial judges may be able to
exclude victims and victims' family members from attending the
guilt-phase of a criminal trial because these persons intend to
make victim impact statements during the sentencing phase of
the trial. While Federal Rule of Evidence 615 does authorize
judges to exclude fact witnesses from trial, this rule was
formulated primarily to guard against potential fact witnesses
changing their testimony based on the testimony of other fact
witnesses they might hear at trial. The situation before the
Committee does not involve the testimony of fact witnesses but
rather statements and other testimony presented by victims as
to the impact of the offenders' crimes on them personally. As
such, the risk that their testimony might somehow be tainted by
evidence presented during the guilt phase of a trial is
H.R. 924 provides that a victim may not be excluded from a
criminal trial in federal court solely because of the fact that
the victim may or will make a statement as to the impact of the
crime on them or their family in accordance with existing law.
The bill does not prevent judges from separating victims who
will also be fact witnesses during the guilt phase of the trial
if the court determines that their fact testimony would be
materially affected by hearing other fact testimony at trial.
See 42 U.S.C. Sec. 10606(b)(4). Nor does the bill affect a
judge's authority to manage his or her courtroom in accordance
with other statutes and court rules. As such the bill strikes a
balance between the goal of ensuring that fact testimony is not
tainted by other testimony at trial and the goal that, when
appropriate, every opportunity is given to victims to witness
first hand that our system is providing justice for them.
Background and Need for the Legislation
In recent years, the public has come to demand that its
elected leaders take a greater interest in the concerns of
victims of crime. Congress has responded to this demand in a
number of ways. In 1990, Congress passed a provision requiring
federal government employees involved in the detection,
investigation, and prosection of crime to make their best
efforts to see that victims of crime were accorded a number of
rights, including the right to be treated with fairness and
with respect for the victims' dignity and privacy, the right to
be reasonably protected from the accused offender, the right to
be notified of court proceedings, the right to confer with the
attorney for the government in the case, and the right to
information about the conviction, sentencing, imprisonment and
release of the offender. See Public Law No. 101-647, codified
at 42 U.S.C. Sec. 10606. That Act also provided for two other
important rights to be accorded victims: the right to
restitution, and the right to be present at all public court
proceedings related to the offense. Since 1990, Congress has
enacted several measures to further this intent.
In 1996, Congress enacted Public Law 104-132, the ``Anti-
Terrorism and Effective Death Penalty Act of l996.'' Title II
of that act made significant amendments to the restitution
provisions of the United States Code to require, in large part,
that federal courts order persons convicted of violent crimes,
and specified other crimes, to make restitution to the victims
of their crimes.
In 1994, Congress passed legislation relating to the right
of the crime victim to be present at public court proceedings.
In Public Law 103-322, the ``Violent Crime Control and Law
Enforcement Act of l994,'' Congress made provision for victims
and their family members to be given opportunities to
participate in the sentencing hearings in certain criminal
cases. One of those provisions, now found in Federal Rule of
Criminal Procedure 32(c)(3)(E) provides that if a sentence is
to be imposed for a crime of violence or sexual abuse, the
court is required to ``address the victim personally if the
victim is present at the sentencing hearing and determine if
the victim wishes to make a statement or present any
information in relation to the sentence.'' If so, the judge is
required to allow the victim to make a statement or present
such information. It is generally accepted that this ``right of
allocution'' found in Federal Rule of Criminal Procedure 32
applies only in non-capital criminal cases.
In the 1994 Act, Congress also authorized the government,
in capital cases, to call victims and victims family members
during the post verdict ``special hearing to determine whether
a sentence of death is justified'' in order to testify as to
any aggravating factors that the government wishes to prove.
See 18 U.S.C. Sec. 3593. That section requires the government
to provide notice to the defense that the government ``believes
that the circumstances of the offense are such that a sentence
of death is justified and that the government will seek the
sentence of death, and setting forth the aggravating factor or
factors that the government, if the defendant is convicted,
proposes to prove as justifying a sentence of death.'' That
section goes on to note that ``the factors for which notice is
provided under this subsection may include factors concerning
the affect of the offense on the victim and the victims
family.'' By implication, therefore, an aggravating factor
which the government may seek to prove during the special
hearing is the effect of the offense on the victim and the
Additionally, courts have held that the government may
offer ``victim impact'' testimony to rebut mitigating factors
that the offender may choose to establish pursuant to 18 U.S.C.
Sec. 3592(a)(8). This evidence is offered to counteract ``the
mitigating evidence which the defendant is entitled to put in,
by reminding the sentencer that just as the murderer should be
considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in
particular to his family.'' Booth v. Maryland, 482 U.S. 496,
517 (1987)(White, J., dissenting). Recently, the Supreme Court
upheld against constitutional challenge the right of state and
federal governments to offer this kind of ``victim impact''
evidence during consideration of the sentence of a person
convicted of a capital offense. Payne v. Tennessee, 501 U.S.
Recently, the Committee has learned that federal trial
judges may attempt to exclude victims and victims family
members from attending the guilt phase of a criminal trial
because these persons have indicated a desire to make victim
impact statements during the sentencing phase of the trial. The
Committee understands that these judges may rely upon the
provisions of Federal Rule of Evidence 615 in order to exclude
these witnesses. That rule provides, ``At the request of a
party the court shall order witnesses excluded so that they
cannot hear the testimony of other witnesses, and it may make
the order of its own motion.'' The rule goes on to prohibit the
exclusion of a party who is a natural person, an officer or
employee of a party which is not a natural person designated as
its representative by its attorney, or a person whose presence
is shown by a party to be essential to the presentation of the
party's case. These exceptions have generally not been
interpreted to include the victim or the victim's family
When the Federal Rules of Evidence were proposed in 1972,
the Advisory Committee on the Federal Rules of Evidence noted,
``The efficacy of excluding or sequestering witnesses has long
been recognized as a means of discouraging and exposing
fabrication, inaccuracy, and collusion.'' 1 Others have
described the goal of Rule 615 as two-fold: ``to prevent
falsification and to uncover fabrication that has already taken
place.'' 2 With respect to the former, and put more
succinctly, the rule is designed ``to prevent the possibility
of one witness shaping his testimony to match that given by
other witnesses at trial.'' 3 In some cases the concern is
that witnesses will actually collude with one another to tailor
their testimony so as to be consistent. In many circumstances,
the concern is that fact witnesses will be affected, either
consciously or subconsciously, in their testimony by hearing
the testimony of other witnesses as to the facts in issue in
the case. By preventing these witnesses from attending the
trial, this concern is minimized.
\1\ Fed. R. Evid. 615 advisory committee's note.
\2\ 3 Jack Weinstein, Margaret A. Berger, Joseph M. McLaughlin,
Weinstein's Evidence para. 615(1996). See also, 3 Christopher B.
Miller, Laird C. Kirkpatrick, Federal Evidence 556 (1994).
\3\ Id. (citing United States v. Leggett, 326 F.2d 613 (4th Cir.),
cert. denied, 377 U.S. 955 (1964)).
In situations where victims or victims' family member will
only give ``victim impact'' testimony during the post-
conviction sentencing hearing, however, the Committee believes
that the considerations that underpin Federal Rule of Evidence
615 are not in issue. Accordingly, the Committee believes that,
in those instances, judges should not use the Rule to exclude
victims and victims' family members from attending trials
simply because they may give victim impact testimony during the
sentencing hearing. 4
\4\ As noted above, the bill does not prevent judges from
separating victims who will also be fact witnesses during the guilt
phase of the trial if the court determines that their fact testimony
would be materially affected by hearing other fact testimony at trial.
See 42 U.S.C. Sec. 10606(b)(4).
When a victim or victim's family member seeks to present
victim impact evidence only, this evidence is presented after
the fact-finding portion of the trial has concluded and guilt
has been adjudicated. The statements made by the victim or
family members concern their personal experience as a result of
the crime. In short, the victim impact testimony is different
from the facts proven during the guilt phase of the trial. As
such, there can be little, if any, impact on the victim impact
testimony from the fact testimony presented during the guilt
phase of the trial. Because the victim impact testimony is
unique to each individual and consists largely of the
subjective beliefs of the individual as to the impact of the
crime, there is no need for victims to ``tailor'' their
testimony to that of other victims and, therefore, no real
concern that collusion among victim impact witnesses might take
Some opposed to this bill have expressed concern that by
allowing victims and family members to attend the guilt phase
of the trial they will become more emotionally distraught and,
as a result, give more forceful victim impact testimony during
the sentencing phase than they might otherwise give had they
not been permitted to attend the guilt phase of the trial.
While the Committee acknowledges that this may occur, the
Committee also notes that victims, and especially family
members, who are willing to testify during the sentencing
hearing, are most likely those who feel most strongly about the
actions of the convicted defendant and the effect of the crime
on them. Victims know all too well the impact of what happened
to them. And those family members who are motivated to come
forward to seek to speak during sentencing are usually those
who have already made the effort to learn the circumstances of
the crime committed against their relative. It is very unlikely
that they will be surprised by evidence presented during the
guilt phase of the trial as to the effect of the crime on the
victim. In short, the Committee believes that attendance will
have little, if any, effect on victims and family members who
wish to make victim impact statements.
Even if the effect of observing the trial may be to
increase the emotional intensity with which victims and family
members may later testify as to their loss, the Committee has
chosen to balance this concern with the public policy expressed
by prior Congresses, and which it continues to support, that
victims be afforded every opportunity to attend criminal
trials. Weighing these positions, the Committee believes that
the interests of the victims and their families should outweigh
the concern of prejudice to a convicted defendant, for several
First, as discussed above, the Committee believes that any
increase in the intensity of the victim impact testimony given
by victims and family members viewing the trial is likely to be
minimal at most. Second, even if this is a possibility, the
Committee believes that in balancing this ``risk'' against the
benefit of this legislation to victims of crime and their
families, the interests of convicted defendants should be
entitled to less protection than would be required if the
purported ``harm'' of this bill were to persons whose guilt has
yet to be proven beyond a reasonable doubt. Third, as the
Supreme Court made clear in Payne, convicted defendants may
always avail themselves of the protection of the Fifth and
Eighth Amendments to the United States Constitution in order to
protect themselves against victim impact testimony which is
improperly prejudicial. Given all of these considerations,
therefore, the Committee believes that the interests of victims
of crime and their families should predominate over the
somewhat speculative concerns that impermissible prejudice to
convicted defendants may occur.
While the Committee reaches this conclusion with regard to
all criminal cases, the Committee notes that in non-capital
cases, this balance is even more clearly weighted in favor of
the interest of victims and their families. At sentencing
hearings in non-capital cases, victims exercising their right
of allocution under the Federal Rules of Criminal Procedure
make their ``allocution'' to the trial judge, and not to the
jury. The Committee believes that a judge is even more capable
of appropriately scrutinizing the statements made or other
information presented by victims during sentencing so as not to
be inappropriately prejudiced in deciding the appropriate
sentence to be imposed on the convicted defendant. The
Committee also notes that federal sentencing guidelines, in
conjunction with applicable statutes, mandate the sentence
options available to a judge in every criminal case, subject to
departures only in certain situations. Thus, the likelihood
that victim allocution evidence presented by a victim who was
allowed to watch the guilt phase of the criminal trial will
improperly prejudice a convicted defendant's sentence is
Finally, the Committee wishes to note that the bill is not
to be interpreted as a guarantee to victims and their family
members of a right to be present at trial under any
circumstance. Judges continue to have the discretion, subject
to other statutes and local court rules, to place reasonable
restrictions on the number of persons who are present in the
courtroom during trial, and to deal appropriately with
spectators who choose to behave in inappropriate ways during
trial. Nor is it the Committee's intent that this bill
supersede those provisions of law which give judges the power
to exclude testimony if its probative value is outweighed by
the danger of creating unfair prejudice, confusing the issues,
or misleading the jury.5
\5\ The Committee does note, however, that the fact that a person
has attended a trial pursuant to new section 3510 should not, in
itself, be deemed to create a danger of creating unfair prejudice,
confusing the issues, or misleading the jury.
The Committee's Subcommittee on Crime held no hearings on
On March 6, 1997, the Subcommittee on Crime met in open
session and ordered reported the bill H.R. 924, by a voice
vote, a quorum being present. On March 12, 1997, the Committee
met in open session and ordered reported favorably the bill
H.R. 924 with amendment by voice vote, a quorum being present.
Vote of the Committee
There were no recorded votes on the bill H.R. 924.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 924, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
Congressional Budget Office,
Washington, DC, March 13, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 924, the Victim
Allocution Clarification Act of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
June E. O'Neill, Director.
H.R. 924--Victim Allocution Clarification Act of 1997
CBO estimates that enacting this legislation would have no
significant impact on the federal budget. Because the bill
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. H.R. 924 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act of 1995 and would not impose costs
on state, local, or tribal governments.
Under current federal court procedures, judges sometimes
exclude victims of crime from the trial of the accused
perpetrator if the victim will testify later at a sentencing
hearing. H.R. 924 would provide that a crime victim could
attend a criminal trial in federal court even if the victim
might subsequently testify during the sentencing phase.
Enacting H.R. 924 could result in more persons attending
federal trials than would under current law. Based on
information from the Administrative Office of the United States
Courts, however, CBO expects that any increase in attendance
would be small and would not result in any significant
additional costs to the federal courts.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Robert A. Sunshine, Deputy
Assistant for Budget Analysis.
Constitutional Authority Statement
Pursuant to rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, section 8 of the Constitution.
section 1. short title
This section cites the short title of the bill as the
``Victim Allocution Clarification Act of l997.''
section 2. rights of victims to attend and observe trial
a. New section 3510 of Title 18
This section adds new section 3510 of chapter 223 of Title
18, United States Code, entitled ``Rights of Victims to Attend
and Observe Trial.'' The intent of this section is to make it
clear that no person who wishes to exercise any right which may
otherwise be provided for by law to make statements, present
information, or testify during the sentencing hearing of a
federal criminal trial will be excluded from observing that
trial solely because of this desire.
To accomplish this intent, the bill enacts new section 3510
of Title 18 which provides that ``A United States district
court shall not order any victim of an offense excluded from
the trial of the defendant accused of that offense because such
victim may or will, at the sentencing hearing--(1) exercise the
right to make a statement or present any information in
relation to the sentence at the imposition of sentence; or (2)
testify as to the effect of the offense on the victim or the
victim's family.'' The text of paragraph (1) of new section
3510 is taken from that portion of existing law (18 U.S.C.
Sec. 3593(a)) relating to the notice that the government is
required to give to the defense of its intent to seek the death
penalty and of the aggravated factors it will seek to prove
during the ``special hearing to determine whether a sentence of
death is warranted'' which is held after a guilty verdict is
returned in a federal capital case. The text of paragraph 2 of
new section 3510 is taken from Federal Rule of Criminal
Procedure 32 which describes procedures to be followed during
sentencing in federal criminal trials not involving capital
offenses. Both of these provisions were enacted as part of
Public Law 103-322, the ``Violent Crime Control and Law
Enforcement Act of l994.''
b. Clerical amendment
Section 2 of the bill also contains a clerical amendment to
the table of sections at the beginning of Chapter 223 of Title
18 of the United States Code.
c. Application of new section 3510 to pending cases
Section 2 of the bill also provides that the amendments
made by the bill are to apply in cases pending on the date of
enactment of this bill. This provision has been included in the
bill to make it clear to courts reviewing this act that
Congress intended that new section 3510 apply to all cases
which were pending on the date the bill was enacted, as well as
all cases filed thereafter.
a. Definition of victim
Although not defined specifically in the bill, the
Committee notes that the term ``victim'' is defined in both 42
U.S.C. Sec. 10607 and in the Federal Rules of Criminal
Procedure. In cases where the victim of the crime is deceased,
Federal Rule of Criminal Procedure 32 requires the court to
designate one or more family members or relatives of the
deceased to exercise the right of allocution granted in that
Rule. It is the Committee's intent that all persons who may
desire to exercise any right which may be provided for by law
to make statements, present information, or testify during the
sentencing hearing of a federal criminal trial will benefit
from the effect of this bill. Thus, in interpreting this
section, the Committee intends the term ``victim'' be defined
broadly and, in so far as practical, be given the meanings set
forth in those provisions which allow citizens to make
statements, present information, or testify during the
sentencing hearing of a federal criminal trial.
b. Applicability of other statutes and rules
It is the Committee's intent that, in accordance with the
general rule of statutory construction, to the extent this bill
may conflict with other statutes or any rules applicable to the
federal courts, this bill be interpreted to supersede such
statute or rule to the extent of the conflict.
c. Review of new section 3510
The Committee assumes that both the Department of Justice
and victims will be heard on the issue of a victim's exclusion,
should a question of their exclusion arise under this section.
The Committee intends that an allegedly erroneous ruling by a
district court excluding a victim in violation of this section
be reviewable on appeal, both by the government and by the
victim. The Committee points out that it has not included
language in this statute that bars a cause of action by the
victim, as it has done in other statutes affecting victims'
rights (see, e.g., 42 U.S.C. Sec. 10606(c); 42 U.S.C.
No agency views were submitted with respect to H.R. 924.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italic and existing law in which no change is proposed is
shown in roman):
CHAPTER 223 OF TITLE 18, UNITED STATES CODE
CHAPTER 223--WITNESSES AND EVIDENCE
3481. Competency of accused.
* * * * * * *
3510. Rights of victims to attend and observe trial.
* * * * * * *
Sec. 3510. Rights of victims to attend and observe trial
A United States district court shall not order any victim of
an offense excluded from the trial of a defendant accused of
that offense because such victim may or will, during the
(1) exercise the right to make a statement or present
any information in relation to the sentence at the
imposition of sentence; or
(2) testify as to the effect of the offense on the
victim and the victim's family.
We dissent from the Judiciary Committee's embrace of H.R.
924, a bill that bears an altogether misleading title--the
``Victim Allocution Clarification Act of 1997''. This bill is
politically based special legislation at its worse. We find
highly disturbing both its substance and the pace at which it
threatens to move through the Congress.
The bill was not available from subcommittee drafters until
after 5:00 p.m. March 6, 1997. No hearing was held on the bill.
On March 7, 1997, the bill was voted out of the crime
subcommittee without discussion. By the next Wednesday, the
full subcommittee reported the bill. The Tuesday following
that, it is slated to be voted upon on the House floor. This
legislative railroad is plainly designed to deliver this piece
of special, overly intrusive legislation to the federal
courthouse steps in Denver, Colorado before the March 31
Oklahoma City bombing case trial date.
The bill's Judiciary Committee sponsors readily admitted in
full committee markup that H.R. 924 would overturn United
States District Court Judge Matsch's evidentiary ruling in the
Oklahoma City bombing cases. That ruling held that families and
survivors of the Oklahoma City bombing had to be excluded from
the trial proceedings if they were to give crime impact
testimony at the sentencing phase. The ruling was sustained by
the Tenth Circuit Court of Appeals.
Some of the bill's sponsors joined a ``friend of the
court'' brief during the Tenth Circuit appeal, arguing for
reversal for the trial Judge's difficult ruling. After the
Appellate Court decision, the bill's sponsors swiftly
introduced this special legislation in an attempt to overrule
the Court's decision, and are now rushing it through the House
without any hearing, in an attempt to overrule the decisions of
Our Constitution created a government which is premised on
checks and balances through a separation of powers among
independent branches of government. The Legislative Branch is
empowered to make laws, subject to certain limitations such as
the Bill of Rights and prohibitions against Bills of Attainder
(special legislation) and ``ex post facto'' (retroactively
applied) laws. The function of the Executive Branch is to
enforce laws. The Judiciary interprets the laws and adjudicates
cases and controversies arising under them. Marbury vs.
Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).
``One branch is not permitted to encroach on the domain of
another.'' (See e.g., Plaut v. Spendthrift Farms, Inc., 514
U.S. 211, 115 S.Ct. 1447, 131 L.Ed. 2d 328 , hereinafter
``Plaut'', and authorities cited therein.)
H.R. 924 violates the Constitutional framework of
separation of powers in its undue, retroactive interference
with a settled evidentiary ruling in a pending criminal case.
It is an obvious attempt to obtain legislatively a ruling in
the Oklahoma City bombing case(s) different from the one
already entered by a federal judge according to the law and the
facts of the particular cases and sustained on appellant
As Justice Scalia recently explained in Plaut:
The Framers of our Constitution lived among the ruins of a
system of intermingled legislative and judiciary powers, which
had been prevalent, in the colonies long before the Revolution,
and which after the Revolution had produced fractional strife
and partisan oppression.
* * * * * * *
The sense of a sharp necessity to separate the legislative
from the judicial power, prompted by the crescendo of
legislative interference with private judgments of the courts,
triumphed among the Framers of the new Federal Constitution.
Legislatures are primarily policymaking bodies that
promulgate rules to govern future conduct. The constitutional
prohibitions against the enactment of ex post facto laws and
bills of attainder reflect the constitutional concern that the
political process will be abused to unduly punish the
unpopular. The Constitution's prohibitions against ex post
facto laws and bills of attainder, and indeed, its entire
structural provision for a separation of powers reflect the
concern that legislation might be used, as it is in this bill,
not to prevent future conduct or perfect the administration of
justice, but rather, to impose by legislation a special penalty
against specific persons or classes of persons. As James
Madison put it, retroactive legislation of this kind abusively
affords special opportunities for the politically popular and
powerful to obtain improper legislative benefits. It is
unseemly for someone, in the middle of a trial, to seek
Congressional assistance to affect the outcome of that case.
Judge Matsch has determined that the sequestration of
impact witnesses is necessary to ensure that their testimony
will remain in fact ``crime-impact statements'', and not
``trial process-impact statements.'' Insofar as the court's
ruling ensures these constitutionally protected rights, it is
beyond the power of Congress to alter that ruling by statute.
Whether or not Congress agrees with his ruling, the court
should have the ability to render it according to the law and
facts before him in the particular cases. He is in the best
position to make such difficult determinations. Judge Matsch
should be allowed to run his courtroom and conduct these
trials, without the Congress grabbing his gavel from him after
a ruling not to its political liking.
Intervention by Congress in a pending case is not only a
blatant intrusion upon the Constitutional principles of
separation of powers, it also exposes a criminal trial to
problematic publicity because the U.S. Congress has obviously
weighed in on one side of a pending case. Due to the prospect
of prejudicial impact from the enormous pre-trial publicity
surrounding the Oklahoma City bombing case, the trial of the
case had to be removed not just from the jurisdiction of its
original venue, but entirely outside of the State of Oklahoma.
Additional complaints of prejudicial pre-trial publicity are
under consideration in connection with alleged breaches of
attorney/client confidentiality privileges. This highly
politicized intervention in the case by Congress will only add
to these possible case infirmities and, while addressing the
understandable concerns of victims, may jeopardize the
government's case, altogether.
H.R. 924 requires the court to allow victim impact
witnesses to observe court proceedings relating to the
determination of guilt or innocence even where the court has
determined that such observation will prejudicially taint their
testimony. While prejudicially tainted testimony is a problem
in any case, it is especially problematic in a federal death
penalty case where the decision to impose death or not is made
by a jury.
The legislation before us fails to consider the stark
differences between the trial of capital and non-capital cases.
In noncapital cases, the victims crime-impact statements are
made to the judge alone during the sentencing phase of the
trial. The judge has experience in separating emotions,
inflammatory rhetoric, and what is relevant and irrelevant. In
capital cases, however, the crime-impact statements are made
directly to a jury and may well include emotional,
inflammatory, and irrelevant testimony.
Unfortunately, an amendment to limit the application of the
bill to non-capital cases was defeated. Therefore, all pending
and future capital cases will be exposed to new legal
challenges because of the passage of this bill.
This is not the first time in recent years the Congress has
acted as a super appeals court by intervening in a pending case
to impose a politically popular ruling different from the
results achieved through court deliberations. In the Morgan/
Foretich custody case, Congress served as a super Supreme Court
to overturn a court decision Members did not like. Just last
week, the House served as an advisor to the Alabama Supreme
Court in a pending case involving the Ten Commandments.
Furthermore, it is not even the first time Congress has
acted to control a court determination in the Oklahoma City
bombing case. Last year, to prevent the court from prohibiting
cameras in the trial, Congress added a special provision to the
anti-terrorism bill directing that in any trial where venue is
changed by ``more than 350 miles * * * '', the court ``shall
order closed circuit televising of the proceedings * * * ''.
The Oklahoma bombing case is the only one which fits this
This legislation violates the fundamental constitutional
principle of the separation of powers. It also risks further
prejudicing the outcome of a pending criminal case which has
already been moved out of the state due to extensive pre-trial
publicity. Additionally, it fails to differentiate between the
potential impact of inflammatory testimony in a capital case
and in a non-capital case. Further, it creates the unseemly
spectacle of Congress intervening to effect the outcome in a
pending capital case.
In short, high profile criminal cases are the truest tests
of the American Constitution. Congress should not act as an
interlocutory court of appeals in such cases. Tinkering with
the judicial process to affect the outcome of a particular
pending case holds the entire process up to disrepute.
Melvin L. Watt.
Sheila Jackson Lee.