A. Investigation Stage

The investigatory agency's responsibilities begin with the report of the crime and extend through the prosecution of the case. In some instances, where explicitly stated, the investigatory agency's responsibility for a certain task is transferred to the prosecution agency when charges are filed.

1. Designation of Responsible Officials. Application of Art. IV.A. will be the responsibility of the following officials:
   1. In the FBI, the responsible official is the Special Agent-in-Charge of the division having primary responsibility for conducting the investigation.

   2. In the DEA, the responsible official is the Special Agent-in-Charge of the office having primary responsibility for conducting the investigation.

   3. In the INS, the responsible official is the District Director or Chief Patrol Agent of the office having primary responsibility for conducting the investigation.

   4. In the U.S. Marshals Service, the responsible official is the U.S. Marshal in whose district the case is being conducted.

   5. In the Office of the Inspector General, the responsible official is the Inspector General.

2. Identification of Victims. At the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation, and continuing throughout the investigation and prosecution of the case, the responsible official of the investigative agency shall identify the victims of a crime. (42 U.S.C. § 10607(b)(1))

3. Description of Services
   1. Information, Notice, and Referral
      1. Initial Information and Notice. At the earliest opportunity after detection of a crime at which it may be done without interfering with an investigation, the responsible official of the investigative agency shall inform a victim of
         1. Their right to receive, on request, the services listed in 42 U.S.C. § 10607(c). (42 U.S.C. § 10607(b)(2)).

         2. The name, title, business address, and telephone number of the responsible official to whom such a request for services should be addressed. (42 U.S.C. § 10607(b)(3))

         3. The place where the victim may receive emergency medical and/or social services. (42 U.S.C. § 10607(c)(1)(A))

         4. Restitution or other relief (including crime victim compensation programs) to which the victim may be entitled under this or any other applicable law and the manner in which such relief may be obtained. (42 U.S.C. § 10607(c)(1)(B))

         5. Public and private programs that are available to provide counseling, treatment, and other support to the victim. (42 U.S.C. § 10607(c)(1)(C))

         6. The right to make a statement about pretrial release in cases of interstate domestic violence, violation of a protection order, and stalking.

            At the earliest opportunity after detection of an interstate domestic violence, violation of a protection order, or stalking offense at which it may be done with out interfering with an investigation, the responsible official of the investigative agency shall inform the victim that he or she has the right to make a statement regarding the danger posed by the defendant for the purposes of determining pretrial release of the defendant or conditions of such release. (see 18 U.S.C. § 2263)

         7. Information about payment for testing and counseling in cases of sexual assaults that pose a risk of transmission of sexually transmitted diseases.

            At the earliest opportunity after detection of a sexual assault that poses a risk of transmission of sexually transmitted diseases at which it may be done without interfering with an investigation, the responsible official of the investigative agency shall inform victims of the Attorney General's obligation to provide for the payment of the cost of up to two anonymous and confidential tests of the victim for sexually transmitted diseases and the cost of a counseling session by a medically trained professional regarding the accuracy of such test(s) and the risk of transmission of sexually transmitted diseases to the victim as the result of the assault. (42 U.S.C. § 10607(c)(7))

         Commentary

         To comply with the above informational requirements, it is recommended that as soon as victims are identified, they should receive a printed brochure or wallet-sized card that lists victims' rights and local service providers, briefly describes the rights and available services, and lists the names and telephone numbers of key officials and the victim-witness coordinator or specialist. Models for such brochures, in a variety of different languages, are available through the Office for Victims of Crime. Whenever possible, personal contact should be initiated with victims. Institution of this recommendation should be included in the annual Best Efforts Report.

      2. Referral. The responsible official shall assist the victim in contacting the person or office responsible for providing the services and relief described in paragraph A.1. (42 U.S.C. § 10607(c)(1)(D)) When charges are filed, the responsibility for making referrals is transferred to the responsible official of the prosecutor's office.

      3. Notice during the investigation. During the investigation of a crime, a responsible official shall provide the victim the earliest possible notice concerning
         1. The status of investigation of the crime, to the extent that it is appropriate and will not interfere with the investigation. (42 U.S.C. § 10607(c)(3)(A))

         2. The arrest of a suspected offender. (42 U.S.C. § 10607(c)(3)(B))

   2. Protection from Harassment/Intimidation. The responsible official of the investigative agency shall arrange for a victim to receive reasonable protection from a suspected offender and persons acting in concert with or at the behest of the suspected offender. (42 U.S.C. § 10607(c)(2))

      Moreover, information on the prohibition against intimidation and harassment and the remedies therefor should routinely be made available to victims and witnesses. The responsible official should, if warranted, advise the component of the Justice Department having protection responsibilities for the victim of intimidation or harassment, of instances involving intimidation or harassment of any victim or witness.

      Commentary

      Civil procedures for protecting victims and witnesses against such harm and intimidation, including application for temporary restraining orders and protective orders, are set out in 18 U.S.C. §§ l512-1515. Of course, the Justice Department can not guarantee victims complete freedom and safety from harassment and intimidation. There are, however, a wide range of security measures that victims, witnesses, and law enforcement can take to lessen the risk of harassment and intimidation. These measures may range from a victim changing his or her telephone number to the extreme measure of enrollment in the Federal Witness Security Program (which is available to witnesses only in limited situations and has very stringent guidelines about who qualifies for admission). Justice Department personnel should use their discretion and sound judgment when assessing and discussing possible threats and security measures with victims.

   3. Return of Property Held as Evidence. At all times, a responsible official shall ensure that any property of a victim that is being held for evidentiary purposes be maintained in good condition and returned to the victim as soon as it is no longer needed for evidentiary purposes. (42 U.S.C.§ 10607(c)(6))

      Commentary

      This guideline is not intended to prohibit legitimate law enforcement use of victims' property that may be damaged or destroyed as part of the law enforcement process. This guideline does not apply to contraband which need not be returned to victims.

   4. Notification to Victims' and Witnesses' Employers and Creditors. Upon request by a victim or witness, the responsible official should assist in notifying
      1. The employer of the victim or witness if cooperation in the investigation of the crime causes his/her absence from work.

      2. The creditors of the victim or witness, where appropriate, if the crime or cooperation in its investigation affects his/her ability to make timely payments.

      Upon filing of charges by the prosecutor, this responsibility transfers to the responsible official of the prosecutor's office.

   5. Payment for Forensic Sexual Assault Examinations. The responsible official, or the head of another department or agency that conducts an investigation of a sexual assault shall pay, either directly or by reimbursement of payment by the victim, the cost of a physical examination of the victim and the costs of materials used to obtain evidence. The department or agency conducting the sexual assault investigation pays the cost of a forensic medical examination, unless payment is provided by other means. In no case shall the sexual assault victim be held responsible for payment of the forensic sexual assault examination. (42 U.S.C. § 10607(c)(7))

   6. Logistical Information. Victims and witnesses should be provided information or assistance with respect to transportation, parking, child care, translator services, and other investigation-related services. Upon filing of charges by the prosecutorial agency, this responsibility transfers to the responsible official of the prosecutorial agency.

   7. Programs for Department of Justice Employees Who Are Victims of Crime. Responsible officials should ensure that Department of Justice employees have access to an Employee Assistance Program.

B. Prosecution Stage

The prosecution stage begins when charges are filed and continues through postsentencing legal proceedings, including appeals and collateral attacks.

1. Responsible Officials. For cases in which charges have been instituted, the responsible official is the U.S. Attorney in whose district the prosecution is pending. For cases in which a litigating division of the Department of Justice is solely responsible, the responsible official is the chief of the section having responsibility for the case. The Department attorney handling the case shall perform the same duties under these guidelines as are required of an Assistant U.S. Attorney. By agreement between the Criminal Division and EOUSA, the responsible official from the Criminal Division may delegate some responsibilities to the U.S. Attorney in whose district the prosecution is pending.

   For cases in which the U.S. Marshals Service is the custodial agency and is housing Federal pretrial detainees (at the same time the offender is being concurrently prosecuted by the U.S. Attorney's Office), the responsible official for purposes of performing the duties of the corrections agencies contained in Art. III.C. shall be the U.S. Attorney in whose district the prosecution is pending.

2. Services to Crime Victims
   1. Information, Notice, and Referrals
      1. Notice of case events. During the prosecution of a crime, a responsible official shall provide the victim the earliest possible notice of
         1. The release or detention status of an offender or suspected offender. (42 U.S.C. § 10607(c)(3)(E))

         2. The filing of charges against a suspected offender, or the proposed dismissal of all charges, including the placement of the offender in a pretrial diversion program and the conditions thereof. (42 U.S.C.§ 10607(c)(3)(C))

         3. The scheduling, including scheduling changes and/or continuances, of each court proceeding that the victim or witness is either required to attend or entitled to attend. (42 U.S.C. § 10607(c)(3)(D))

         4. The acceptance of a plea of guilty or nolo contendere or the rendering of a verdict after trial. (42 U.S.C. § 10607(c)(3)(F))

         5. If the offender is convicted, the date set for sentencing, the sentence imposed, and the availability of the Bureau of Prisons notification program which shall provide the date, if any, on which the offender will be eligible for parole or supervised release. (42 U.S.C. § 10607(c)(3)(G))

      2. Information about additional rights. If the victim is not a trial witness, the responsible official shall make reasonable and diligent efforts to inform the victim about the victim's right to attend the trial regardless of whether the victim intends to make a statement or present any information in relation to the sentence. (see 18 U.S.C. § 3510(a))

      3. Information about proceedings. During the prosecution of a crime (if the victim has provided a current address or telephone number), a responsible official should provide the victim with general information, preferably in writing, about the criminal justice process, in particular
         1. The role of the victim in the criminal justice process, including what the victim can expect from the system as well as what the system expects from the victim.

         2. The stages in the criminal justice process of significance to a crime victim and the manner in which information about such stages can be obtained.

            (cf. Pub. L. 97-291 § 6(a)(1)(C) and (D), see Historical and Statutory Notes, 18 U.S.C. § 1512)

      4. Referrals. Once charges are filed, the responsible official shall assist the victim in contacting the persons or offices which are responsible for providing the services and relief listed in Article IV. A.3.a.(1) (Investigation Stage, Initial Notice).

      5. Postsentencing notifications. Responsible officials should make reasonable efforts, consistent with statutory requirements, to notify identified victims of postsentencing filings and court proceedings, including appeals and collateral attacks. In determining what is reasonable, the responsible official should consider factors relevant to the wisdom and practicality of giving notice in the context of the particular case, including, but not limited to, the following factors:
         1. The impact on public safety and risks to personal safety.

         2. The nature of the relief sought.

         3. The number of victims.

         4. Whether time is of the essence.

         5. Whether there is a need for confidentiality.

         6. The effect that relaying any information may have upon the defendant's constitutional rights.

         (see 42 U.S.C. § 10607(c)(3)(D))

      Commentary

      42 U.S.C. § 10607(c)(3)(D) has historically been interpreted to apply only to trial court proceedings and has not been considered to cover appellate and other postsentencing matters. This guideline is intended to extend the provision of notice about court proceedings to appeals and other postsentencing court proceedings.

   2. Consultation With a Government Attorney
      1. In general. Federal prosecutors should use their best efforts to consult with victims about major case decisions.

      2. Proposed plea bargains. Responsible officials should make reasonable efforts to notify identified victims of, and consider victim views about, any proposed or contemplated plea negotiations. In determining what is reasonable, the responsible official should consider factors relevant to the wisdom and practicality of giving notice and considering views in the context of the particular case, including, but not limited to, the following factors:
         1. The impact on public safety and risks to personal safety.

         2. The number of victims.

         3. Whether time is of the essence in negotiating or entering a proposed plea.

         4. Whether the proposed plea involves confidential information or conditions.

         5. Whether there is a need for confidentiality.

         6. Whether the victim is a possible witness in the case and the effect that relaying any information may have upon the defendant's right to a fair trial.

      Commentary

      This guideline is intended to accord victims their right to confer with an attorney for the Government as provided in 42 U.S.C. § 10606(b)(5). Congress specifically requested that the AG Guidelines contain guidance on this right and suggested that the Government attorney obtain the victims' views about the disposition of the case including dismissals, release of the accused pending judicial proceedings, plea negotiations, and pretrial diversion.

   3. Separate Waiting Area. During court proceedings, the responsible official of the prosecutor's office in cooperation with the U.S. Marshals Service shall ensure that a victim is provided a waiting area removed from and out of the sight and hearing of the defendant and defense witnesses. (42 U.S.C. § 10607(c)(4))

   4. Notification to Victims' and Witnesses' Employers and Creditors. Upon request by a victim or witness, the responsible official should assist in notifying
      1. The employer of the victim or witness if cooperation in the investigation or prosecution of the crime causes his/her absence from work.

      2. The creditors of the victim or witness, where appropriate, if the crime or cooperation in its investigation or prosecution affects his/her ability to make timely payments.

   5. Victim Privacy. Federal prosecutors should keep in mind that the names, addresses, and phone numbers of adult victims and civilian witnesses are private. Prosecutors should be aware of their discovery obligations under Federal Rule of Criminal Procedure 16, any local rules or customs, and court orders and should reveal such information to the defense only pursuant to these rules, customs or court orders, or special prosecutorial need. Prosecutors should also be aware that they have the option of applying for a protective order if discovery of the private information may create a risk of harm to the victim or witness and the prosecutor may seek a temporary restraining order under 18 U.S.C. § 1514 prohibiting harassment of a victim or a witness. Further, all staff of the prosecutor's office should avoid needlessly or carelessly revealing private information to any person.

      Child victims and witnesses have statutory privacy protections more fully addressed infra. (see 18 U.S.C. § 3509(d))

   6. Logistical Information. Victims and witnesses should be provided information or assistance with respect to transportation, parking, child care, translator services, and other prosecution-related services.

   7. Limited Testing of Defendants In Sexual Assault Cases (42 U.S.C. § 14011)
      1. Notice and information. The responsible official should advise the victim of a sexual assault that poses a "risk of transmission" of the Acquired Immunodeficiency Syndrome (AIDS) virus of the circumstances under which the court may order that the defendant be tested for this condition.

      2. Procedure. A court may order that the defendant be tested for the AIDS virus(es) and that the results be revealed to the victim along with appropriate counseling accompanying the results, if the following requirements are met:
         1. If the victim of a sexual assault that poses a risk of transmission of the AIDS virus
            1. Shows that the defendant has been charged,

            2. Requests that the defendant be tested, and

            3. Shows that the test would provide information necessary to his or her health; and

         2. After the defendant has had
            1. Notice, and

            2. An opportunity to be heard

      3. Negative test results. If the initial test is negative, the court may order followup testing and counseling on dates that occur six and twelve months after the initial test(s). (see 42 U.S.C. § 14011(b))

      Commentary

      Models of an Affidavit, Petition and Order are contained in Appendix E.

   8. Right to Make a Statement About Pretrial Release in an Interstate Domestic Violence, Stalking, or Violation of a Protective Order Case. In an interstate domestic violence, stalking, or violation of a protective order prosecution, the victim has the right to be heard regarding the danger posed by the defendant (18 U.S.C. § 2263). In applicable cases, responsible officials shall use reasonable and diligent efforts to bring this provision to the court's attention, inform victims of its existence, and facilitate its implementation.

   9. Closed Circuit Televising of Court Proceedings in Change of Venue Cases. If the court changes the trial venue out of the State in which the case was initially brought more than 350 miles from the location in which the proceedings originally would have taken place, the court must order closed circuit televising of the proceedings to the original location to permit victims who qualify under the statute to watch the trial proceedings. (42 U.S.C. § 10608) In applicable cases, responsible officials shall inform victims of the provision and, if requested by victims, bring it to the court's attention and facilitate its implementation.

   10. Programs for Department of Justice Employees Who Are Victims of Crime. Responsible officials should ensure that Department of Justice employees have access to an Employee Assistance Program.

3. Sentencing Proceedings and Victim Impact Statements

   Note: F.R.Crim. P. 32 has its own definition of "victim." (See infra Appendix A, Definition of Victim.) For purposes of the AG Guidelines provisions based on Rule 32, Department personnel should use the definition of victim from Rule 32.

   1. Victim Impact Statement
      1. When a defendant(s) is convicted, a responsible official should inform victims
         1. That the U.S. Probation Officer is required to prepare a presentence investigation report which includes a section assessing the financial, social, psychological, and medical impact of the crime on any individual against whom the offense was committed. (F.R.Crim. P. 32(b)(4)(D)) This section is called the "Victim Impact Statement" and it includes a provision on restitution.

         2. About how to communicate directly with the probation officer if victims desire.

      2. A responsible official should inform the probation officer about information in the Government's possession relevant to the topics addressed in the Victim Impact Statement so that the presentence investigation report will fully reflect the effects of the crime upon victims as well as the appropriateness and amount of restitution.

   2. Sentencing
      1. Consistent with available resources, other responsibilities, and prosecutorial and law enforcement priorities, Federal prosecutors should advocate the interests of victims, including child victims, at the time of sentencing.

      2. The Right of Victims of Crimes of Violence or Sexual Abuse to Allocute at Sentencing. If a sentence is to be imposed for a crime of violence or sexual abuse, at the earliest opportunity and within sufficient time for the victim to prepare a statement that can be presented at sentencing, the responsible official shall notify the victim by available and reasonable means of the victim's right to address the court at sentencing and of the date, time, and place of the scheduled hearing. If the victim is present and if the victim wishes to make a statement at the sentencing, Federal prosecutors should advocate to the court the right of a victim of a crime of violence or sexual abuse to make a statement or present information in relation to the offender's sentence. (see F.R.Crim.P. 32(c)(3)(E))

         Regardless of whether the victim is present, the right of allocution defined above may be exercised instead by a parent or legal guardian of the victim who is present at the sentencing hearing if the victim is below the age of eighteen (18) years or is incompetent. (see F.R.Crim.P. 32(f)(1)(A)) If the victim is deceased or incapacitated, this right of allocution by the victim may be exercised by one or more family members or relatives designated by the court and present at the sentencing hearing. (see F.R.Crim.P. 32 (f)(1)(B))

      3. Death Penalty Cases. If the Government decides to seek the death penalty, it is required to file notice with the court of its intention to do so. The notice sets forth the aggravating factors that the Government proposes to prove as justifying a death sentence. The factors for which notice is provided may "include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a Victim Impact Statement that identifies the victim of the offense, the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information." (18 U.S.C. § 3593 (a))
         1. If the Government files the proper notice, the responsible official should notify the victim (as defined in Appendix A) and other appropriate family members of their potential opportunity to address the court during the aggravation portion of the sentencing hearing and of the date, time, and place of the scheduled hearing.

         2. Responsible officials shall also notify victims who are not trial witnesses that the court cannot exclude them from the trial merely because the victims may, during the sentencing hearing, testify as to the effect of the offense on the victims and the victims' family or about any other factor for which notice is required. (see 18 U.S.C. § 3510(b))

1. Responsible Officials. For cases in which the U.S. Marshals Service is the custodial agency, housing Federal pretrial detainees (at the same time the offender is being concurrently prosecuted by the U.S. Attorney's Office), the responsible official is the U.S. Attorney in whose district the prosecution is pending. For cases in which the BOP has become involved, the responsible official is the Director or Warden of each BOP facility where the defendant is incarcerated. If the INS is the custodial agency, the responsible official is the Executive Associate Commissioner for Field Operations.

2. Services to Victims
   1. Notice
      1. Custodial Release Eligibility Information. A responsible official of the custodial agency shall provide the victim with general information regarding the corrections process, including information about work release, furlough, probation, and eligibility for each. (42 U.S.C. § 10607(c)(8))

      2. Custodial Release Notification. After trial, the responsible official shall provide a victim the earliest possible notice of the
         1. Date on which an offender will be eligible for parole and the scheduling of a release hearing, if any, for the offender. (42 U.S.C. §§ 10607(c)(3)(G) and (c)(5)(A))

         2. Escape, work release, furlough, or any other form of release from custody of the offender. (42 U.S.C. § 10607(c)(5)(B))

         3. Death of the offender, if the offender dies while in custody. (42 U.S.C. § 10607(c)(5)(C))

      Commentary

      42 U.S.C. §§ 10607(c)(3)(G) and (c)(5) and the AG Guidelines require corrections agencies to provide victims, including inmate victims, with "the earliest possible notice" of certain events involving an incarcerated offender. One factor that a corrections agency can take into consideration in determining the "earliest possible notice" provided to an inmate victim is the security of the offender inmate. Accordingly, when the corrections agency notifies an inmate victim about such events as the scheduled release hearing, work release, furlough, or release from custody of an incarcerated offender, the corrections agency can time the notification to take into consideration any security concerns. If there is a serious security risk in informing an inmate victim of an offender's status, the corrections agency may time the notice to minimize that risk, even if the notification takes place after the event. This determination should be made on a case by case basis and should not be interpreted to prevent an inmate victim from providing input in any parole proceeding. Because the corrections agency is responsible for the security of both victim and offender inmates, the corrections agency is in the best situation to determine when notification given to inmate victims may jeopardize the security of offender victims. Moreover, one important purpose of the notification requirement is to enable the victim to take protective measures when he knows that an offender is being released. When the victim is an inmate, the corrections agency has the responsibility for the victims' security and can time the notice in such a way as to protect both victim and offender. The corrections agency has the discretion to determine what method to use to provide the notice.

      The notice requirement contained in this guideline applies even in cases in which a Department of Justice component is holding a defendant after time served. For example, the INS frequently obtains custody of deportable aliens for deportation purposes after time served in State or Federal facilities. Under 42 U.S.C. § 10607(c)(3)(G), notice is required for any form of release from custody, including whether the INS's release is to officials from another country for deportation or into the community in this country or some other.

   2. Programs for Department of Justice Employees Who Are Victims of Crime. Responsible officials should ensure that Department of Justice employees have access to an Employee Assistance Program.