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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 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [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.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     3
Hearings.........................................................     7
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 
of 1997''.

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 
        sentence; or
          ``(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 
minimal.
    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 
victims family.
    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. 
808 (1991).
    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 
member.
    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[01](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 
place.
    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 
reasons.
    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 
virtually non-existent.
    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.
---------------------------------------------------------------------------

                                Hearings

    The Committee's Subcommittee on Crime held no hearings on 
H.R. 924.

                        Committee Consideration

    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 
Representatives.

               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:

                                     U.S. Congress,
                               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 
Grabowicz.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

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-by-Section Analysis

                         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.

                          other considerations

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. 
Sec. 10608(e)).

                              Agency Views

    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

Sec.
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 
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 and the victim's family.
                            DISSENTING VIEWS

    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 
both courts.
    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 [1995], 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 
review.
    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.

(Plaut, supra).
    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 
description.
    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.

                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Jerrold Nadler.
                                   William Delahunt.