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Whether crime victims have rights before formal criminal charges are filed has recently come to the fore in one of the most publicized criminal cases in recent memory. For more than twelve years, victims of Jeffrey Epstein’s sex trafficking organization have attempted to invalidate a non-prosecution agreement (NPA) entered between Epstein and federal prosecutors. The victims have argued that because prosecutors deliberately concealed the NPA from them, the prosecutors violated the federal Crime Victim’s Rights Act (CVRA). On April 14, 2020, a divided panel of the Eleventh Circuit entered a surprising ruling, rejecting the victims’ argument. The panel refused to find a CVRA violation, reasoning that because the Government never filed federal charges, the CVRA was never triggered.

On August 7, 2020, the full Eleventh Circuit vacated the earlier panel decision and agreed to rehear the case en banc. This article critiques the earlier panel decision and explains why the Eleventh Circuit en banc should proceed in the opposite direction. Under the now-vacated panel decision, “secret” justice was permitted, depriving crime victims in the Eleventh Circuit of any CVRA rights until the Government formally files charges. This would have created perverse incentives for the Government to negotiate secret agreements within the Eleventh Circuit rather than elsewhere, such as in the adjoining Fifth Circuit. This article concludes that the Eleventh Circuit en banc should recognize that the CVRA extends rights to crime victims even before charges are filed. The article also urges Congress to clarify and amend the CVRA to ensure that secret NPAs are not permitted in future federal criminal cases and, more broadly, to protect crime victims during federal criminal investigations.

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