Defendants are charged with kidnapping for ransom and five subsequent murders. Certain crime victims, some of whom will testify at trial, asked to view the trial in its entirety pursuant to the Crime Victim's Rights Act (CVRA). The district court denied the motion, stating that it wanted to avoid collusion and to preserve decorum. The gov't sought mandamus. The 9th granted in part and remanded. The 9th examined the statute 18 USC 7771, which grants an exception to FRE 615 exclusion. That right, however, is not without limits. If the court finds by "clear and convincing' evidence that testimony would be materially altered if the victim heard other testimony, then the witness may be excluded, although other alternatives must be explored. Here, the district excluded the victim-witnesses without determining whether their testimony would be "materially altered" or whether there are reasonable alternatives. The 9th found that the CVRA effectively abrogated FRE 615 with respect to crime victims, and imposes these new weighing test. Moreover, under this test, a "mere possibility that a witness may alter his or her testimony as a result of hearing others testify is not enough to exclude, the court must find that it is highly likely. To call it as it is, it isn't sufficient that a victim may possibly mislead or lie, the court has to find that it is highly likely they will mislead or lie. The court doesn't order the court to permit presence; rather, the court has to make findings under this standard.
Practice issues: (1) the use of "clear and convincing" as "highly likely" is one that can refer to when the gov't has to prove "clear and convincing" (such as in cross references in sentencing). definitions of terms can be used.

(2) Do we get to voir dire and have a say in the materiality? For example, we can show that the victims may materially alter their testimony. In terms of discovery, do we get such discovery ahead of time (in a strict Jencks jurisdiction?). How do we know what might be altered?

(3) Can we ask that the victims go first because of their "right"? For example, if the court is looking for alternatives, we can say that the victim has to go first, or that the victims cannot be present when witnesses as to what the victims know testify. There are ways to possibly limit the damage.

(4) Since there is this right, can we get a jury instruction that states that such witnesses have an opportunity that others do not have?

(5) Can FRE 403 or FRE 100 (fairness etc) trump this? What about due process?

(6) Can this victim right be used to argue to the court that the defendant gets to put on an identification expert or other experts given the possibility that the victims may alter their testimony.

(7) This was an unopposed in limine motion that was denied by the court. Should the gov't be required to give notice beforehand? Can the court require notice or summaries?
Just some thoughts while the 9th Circuit conference goes on.