39–006

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

REPORT

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:
2

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:

‘‘§ 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 guiltphase 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
3

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. §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.

§ 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. § 3593.
4

1Fed. R. Evid. 615 advisory committee’s note.

2 3 Jack Weinstein, Margaret A. Berger, Joseph M. McLaughlin, Weinstein’s Evidence ¶

615[01](1996). See also, 3 Christopher B. Miller, Laird C. Kirkpatrick, Federal Evidence 556

(1994).

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. § 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
5

3 Id. (citing United States v. Leggett, 326 F.2d 613 (4th Cir.), cert. denied, 377 U.S. 955 (1964)). 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.

§10606(b)(4).

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.

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

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
6

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
7

5The 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.

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

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:
8

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.’’
9

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.

§ 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. § 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
10

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. § 10606(c); 42

U.S.C. § 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.

* * * * * * *

§ 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—
11

(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.
(12)

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
13

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
14

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.
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MELVIN L. WATT. SHEILA JACKSON LEE. JERROLD NADLER. WILLIAM DELAHUNT.

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