Victim Attendance Under Rule 60

Victim Attendance Under Rule 60

The closure test taught above protects an open courtroom for the benefit of the accused and the public. Federal Rule of Criminal Procedure 60(a)(2) approaches the courtroom from a different angle, because it governs when a court may keep a crime victim out of a public proceeding. The rule is a procedural one that gives the victim a right to attend, and the accused's public-trial right under the Sixth and Fourteenth Amendments is a separate guarantee with its own test. The rule belongs in this chapter because its structure tracks the closure test closely enough that a student who knows one can reconstruct most of the other.

The rule begins with a prohibition: 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.¹ Starting from a prohibition makes presence the baseline and turns exclusion into an exception that the court must earn. The exception has a narrow target. The only danger the rule recognizes is that hearing other witnesses would change what the victim says, and the word materially signals that a trivial shift in phrasing or detail does not qualify. Clear and convincing evidence is a heightened standard of proof, so the court must be firmly persuaded that the danger is real, which is more than thinking it possible or even likely.

The reason for setting the bar this high follows from who is affected. A victim ordinarily has a strong personal stake in watching the proceedings, and in many prosecutions the victim is also a witness. If expecting to testify were enough to justify exclusion, the rule would take away the victim's interest in attending in exactly the cases where that interest is strongest. The rule therefore reserves exclusion for the one situation in which the integrity of the testimony is genuinely at risk, and the demanding standard of proof keeps a general worry about witnesses from standing in for proof of that risk.

The standard of proof is only the first of the rule's duties. 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, and the reasons for any exclusion must be clearly stated on the record.² Each duty does separate work. The command to permit the fullest attendance possible keeps an exclusion no wider than the danger it answers, so an order that removes the victim from an entire proceeding when the concern is limited to hearing other testimony invites the question whether less would do. The duty to consider alternatives forces a comparison between exclusion and gentler steps, and the text leaves it to the court to identify those steps. The statement of reasons does the subtlest work. Excluding a victim who is also a witness is often the easy course for a judge, because it costs the court nothing while the cost falls on the victim, and a duty to state reasons makes the judge confront the required showing before acting and gives a reviewing court something to evaluate afterward.

The parallel with the closure test is close. The presumption of presence corresponds to the presumption of openness, and the clear and convincing showing about altered testimony plays the part of the overriding interest. The command to permit the fullest attendance possible corresponds to narrow tailoring, the duty to consider reasonable alternatives repeats the third requirement of the Waller test, and the statement of reasons on the record corresponds to findings. Two differences remain. The rule fixes its own standard of proof in its text, and it recognizes a single interest, the integrity of the victim's testimony, so a general wish for a tidier courtroom cannot support an exclusion under it.

The two orders differ in whether the court found, on the evidence, that hearing other testimony would change what the victim says. Examinees most often lose this issue by treating being expected to testify as that finding. Being a witness is the situation that raises the question the rule asks, and the court's determination supplies the answer. The determination also permits an exclusion without compelling one, because the court must still make every effort to permit the fullest attendance possible and consider alternatives before it acts.

A companion provision protects the victim's voice as well as the victim's presence. Rule 60(a)(3) requires the court to permit a victim to be reasonably heard at any public proceeding in the district court concerning release, plea, or sentencing involving the crime.⁴ The two provisions answer different questions. Subsection (a)(2) asks whether the victim may be in the room, while (a)(3) asks whether the victim may address the court, and the second is tied to the three kinds of proceeding its text names. With the statutory rule now set beside the constitutional test, the next section returns to the accused's guarantees and shows how a continuance, one of the alternatives to closure, brings the speedy-trial right back into the analysis.