Mr. SCOTT. Is that the defendants?

Ms. GREENLEE. No. That defendants have not made any kind of appeal that they were denied due process for fair trial because victims' rights, as embodied in our statutes, were upheld.

Mr. BECERRA. Actually, the gentleman from Virginia brings up a good point. What if the victim were to try to appeal?

Ms. GREENLEE. Pardon me?

Mr. BECERRA. What if the victim were to later try to appeal, claiming that there was either coercion or intimidation on the part of the prosecution to not exert his or her rights or wasn't fully informed of his or her rights, and now seeks to appeal the conviction? I doubt that would be the case.

Ms. GREENLEE. There is no such provision in any statutes for the victim to appeal the verdict.

Mr. BECERRA. That gets back to the whole issue of the remedy. There is really no clear remedy that can be provided.

But let me focus on just the defendant ultimately appealing. I know you are telling me it has not happened, but certainly that's not enough for us to decide whether or not we should pass laws because it yet hasn't happened. What if it should happen? How do you deal with that situation where someone decides to appeal because he or she as a defendant claims that the conviction resulted from the victim's participation and ultimately denied that defendant a fair trial until the U.S. Constitution?

Ms. SEMEL. It already has happened in a sense. One can take a look I think at the Norris case, which is cited in the NACDL's written testimony, the situation where victims' rights advocates were wearing buttons and expressing themselves in a highly emotional manner in the course of a trial. The court became very concerned about the influence and the impact of that emotional and passionate expression on the trier of fact, on the jury. Ultimately, the conviction had to be reversed.

But the concern would be, and the court was emphatic in its concern, about whether or not that defendant in that circus atmosphere received a fair trial. Consider Leo Frank, who was convicted as a result of a lynch mob mentality, anti-Semitic mentality in Atlanta, and ultimately was lynched. So we know these things hap

pen.

If we give the victim a coequal position in the courtroom, I think we may very very well tie the hands of judges to control the proceedings in an appropriate fashion so that at the inception, when the focus is on, is this accused person guilty of a crime beyond a reasonable doubt, the court will not be able to enforce the mechanism that will ensure at the end of the day that that trial was fair. That really is in the interest of all of us.

So I think we have to be very very concerned about interfering with the judicial ability to control the trial proceedings and ending up in a situation where a defendant can say yes indeed, this was a trial that ran amuck. We are better off, again, with statutory changes which give judges the power to control their proceedings in an appropriate manner.

Mr. HYDE. The gentlelady from Texas.

Ms. JACKSON LEE. Mr. Chairman, thank you very much. I would like to state the obvious, which is that I thank all of the parties

in this panel, and I apologize for not hearing your testimony. There are dual hearings going on, one of which engages in another sin, if you will, is the denial and elimination of affirmative action.

But we realize that in the course of trying to justify the rights of citizens, there is a tension, the defense, the prosecution, and victim. Part of the value of a system of justice that we have is that tension continues to pull either away from each other or it provides the normal knocking. We hope that in this process in the hearing that we're having today, that we can find the appropriate balance. I do think it is valuable to have the protections enunciated in the Constitution for those who have been accused. Although many of us now are maybe filled with apprehension, because of the enormous rise in crime that we have had in this century, it still should be recognized that the value of the Constitution that we support gives all citizens a fair right to face his or her accuser, but as well to be defended and to be ensured to be protected against unreasonable search and seizure, and of course the right to not incriminate one's self.

At the same time, I would like to offer that there are an enormous litany of tragedies and stories about victims. I think the Oklahoma City scenario comes to mind because it's so large with respect to the number of victims, and of course the enormity of their plight and what they would represent being in the courtroom. But I would ask Ms. Semel from California, who represents those who clearly are part of upholding the Constitution and providing us with our rights, how you have interacted with the constitutional provision in California. I know you represent vast numbers of defense lawyers, but because you are personally in California, tell me how that works and what you have seen practically in the courtroom or what you have heard practically in the courtroom as that particular constitutional amendment is played out in California.

Ms. SEMEL. I think I said earlier, and I would fairly describe it as a sea-change in perception, in attitude. I think it is fair to say that the good news is that there is, and not really I would say as a result of constitutional amendment, but as a result of statutory change and increased sensitivity and training of prosecutors and law enforcement, there is a fairly systematic relationship between witnesses and alleged victims in criminal cases. But I don't believe this has anything to do with constitutional amendment. I think it has to do with a movement, a visibility.

That ultimately is all to the good, in the sense that I venture to say that individuals who are victims and witnesses in California feel a greater sense of being informed and aware and involved at various stages of the proceedings. But I also see some serious downsides. I mentioned earlier that I have grave concerns about what has happened to the presumption of innocence as a result of the presence of victims' advocacy groups, at bail hearings, and at all stages of the proceedings, not just at sentencing when someone has been convicted.

I think we in California, and I think about the Polly Klaas case as an example, run a grave, grave risk of convicting people before they are put on trial. So therefore, I am highly highly, skeptical and concerned about shifting, and undermining, the presumption of innocence and burden of proof. I think that on a pragmatic basis,

the kinds of needs that victims have to be treated sensitively, to be informed, and to participate certainly once an individual has been convicted, can be accommodated and accomplished, and have been in California, by statute, without the need for a change in our fundamental constitutional rights.

Ms. JACKSON LEE. May I have a similar, just general response from Ms. Greenlee? As you are making your response, if the chairman would indulge me to have you make your response. I emphasize the tension that we're facing here between justifying or at least affirming the rights of victims, and as well, upholding the constitutional protections.

I hope, Mr. Chairman, as we deliberate, and earlier we were told that this is a work in progress. I hope the victims will help me understand as we move toward trying to design something that answers many of these concerns, to distinguish between a protest and victims' presence who are a part of victims' groups versus the victims who are particularly relevant to the case in point.

I would have great concern to masses of individuals not related to the proceedings damaging the prosecution's ability to prosecute, and a defense ability to defend, so that if we have a guilty party, it can be upheld. You know, I would be very concerned. I'm not sure if that is what you have said. I certainly think that it is reasonable to have people advocate their positions globally. But when you have court proceeding, I would be very concerned that what we're talking about in terms of emphasizing the victim. In my mind, the victim is the one that is related to the incident at the time.

Ms. Greenlee, can you tell me clearly how if you have had any encountering with either constitutional amendments or statutes on the State level, and how it interacts with your defense perspective. Ms. GREENLEE. Actually, the comment that ran through my mind was that California seems to always be first with all the wild and weird things that happen in the world. We have not seen in Philadelphia, and probably not in the rest of Pennsylvania, which is a fairly rural State, any victim advocacy groups that have been so apparent in courtrooms in terms of trying to influence the actions that go on and to influence the fact finder.

We have no prohibition against victims or victims' families being in courtroom during trial. The only time would be in terms of the exercise of judicial discretion in terms of sequestration if that were called for or requested and granted by the court in terms of any witness to the case who might be requested to leave the courtroom. But we have a family of victims, always especially pronounced when it's a matter that involves the police, who usually ring the courtroom in terms of trying to influence the jury in a way towards the prosecution.

So other than-I can only speak to our experience. I don't know of any complaints, serious complaints that I'm aware of that protection of victims' rights is in any way not being seen to by the broad statutes that we have in Pennsylvania.

Ms. JACKSON LEE. Thank you. Thank you, Mr. Chairman.

Mr. HYDE. Thank you, Ms. Jackson Lee. Does Mr. Watt have any questions?

Mr. WATT. Mr. Chairman, I appreciate the offer, but I think I've been in and out, and I've heard the testimony. I won't be redundant and ask any questions. I'll just look intently at the witness statements. I appreciate the witnesses being here.

Mr. HYDE. Thank you very much. Well, this has been an excellent panel really. You have made a great contribution to our understanding of what we're getting into. It has, as I say, it's made a great contribution.

I think the most salient thing I heard was Mrs. Roper, who said that victims are not going to cooperate any more if they are treated like things and pieces of evidence, and not human beings who are the object of the injustice of which they complain. I think when people stop cooperating with law enforcement, our whole justice system collapses.

So we must look at the victims with a little more respect and a little more consideration, and understand that the Constitution and the Bill of Rights belongs to them as much as the accused, even though we've been more explicit heretofore in the Constitution about the accused rights. But we the people, in order to form a more perfect union, established justice. That means the victim, the victim, who has been assaulted one way or the other. So they have an important role to play. Concededly we have to be careful not to obstruct justice by improvident and overweening language in an amendment. But that there should be an amendment to equal victims with the accused, I am convinced. How we formulate that so as to accomplish what we want to accomplish, nothing more but nothing less, we all have to think about and work on. Your contribution has been considerable. Thank you very much.

The meeting is recessed until 3, when we have our final witness. [Recess.]

Mr. HYDE. The committee will come to order. Our final witness is John Schmidt, the Associate Attorney General of the United States. He has served in that position since July 1994. Before that, he served as the Clinton administration's chief negotiator to the Uruguay Round world trade talks.

Before joining the administration, Mr. Schmidt was in the private practice of law, and was active in civic affairs in my home city of Chicago, for which Chicago is all the better.

I am glad to have you here today. We look forward to your testimony on behalf of the Department of Justice.

STATEMENT OF JOHN R. SCHMIDT, ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

Mr. SCHMIDT. Thank you, Mr. Chairman. I am delighted to be here. I first of all want to thank you for your leadership on this issue. Thank you for scheduling this hearing. I particularly want to thank you as a personal matter for reconvening this afternoon so that I could be here personally. This is an issue that a lot of us in the Justice Department have spent a lot of time dealing with. But it's something that I have come to believe very strongly in myself. So on this first occasion when we've been able to present the views of the administration since the president announced his support for a victims' right constitutional amendment, I had very

much wanted to be here myself. I appreciate your having accommodated that scheduling.

I'll be very brief. We've submitted a full written statement. I think that one of the strengths of the victims' rights amendment is that although it is enormously important, it is fundamentally simple and straight forward. I don't think it requires an enormous amount of explanation or complicated discussion in order to have an understanding of what it is that we are attempting to achieve. As you know, the president announced his support for a victims' rights constitutional amendment. He announced that not only in general terms, but he identified specifically rights that he believed should be guaranteed in that amendment: the right to be notified of court proceedings, the right to attend, the right to be heard if present prior to a decision on bail or on the acceptance of a plea or on sentencing, a similar right to receive notice and to attend and to be heard at parole hearings, the right to restitution from the defendant, the right to reasonable protection against the defendant during the pretrial period, the right to be notified in the event the defendant is convicted and then is ultimately released from jail or escapes, and the right to be notified of those basic rights.

The President also identified what we characterized as cautionary principles that we thought were important to be reflected in the language of an amendment. One was that we not do anything that would interfere with our ability to effectively prosecute criminal cases. The second was that we not do something that would expose local governments or local officials to monetary damages. A third was that we not do something that could conceivably result. in the reversal of convictions.

The President did not endorse specific language. His conclusion was that putting out a competing text was not the way to go. But he directed the Justice Department and lawyers from the White House Counsel's Office to work together with those who have been supportive of these amendments-yourself, Senators Kyl and Feinstein, advocacy groups, others in the Congress-and seek to see if we could reach a consensus on a precise form of amendment that we could all support and go forward with.

I am happy to say that, as you know, those discussions have already begun. We have had some discussions with you and members of your staff, and with Senators Kyl and Feinstein and with members of their staffs, and with others in the Congress. I think we have already begun to see in the revised drafts that have been circulated recently some reflection of some of our comments and comments being made by others.

I think that all of us who have been in those discussions are approaching it on the basis that this is a constitutional amendment that we are drafting. It is something where there should be no pride of authorship. There should be no reluctance to take language because it's somebody else's language. There should be no reluctance to change things as we go along with this process.

This is not an ordinary statute where we're going to be able to come back in a year or two and change it. If we go forward with this it will ultimately become part of the Constitution. So I think we've all approached it, and I think everyone has to approach it on the basis that we have to do everything possible to get it right. I