Proposed Rule2025-01159
Homicide Victims' Families' Rights Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 21, 2025
Issuing agencies
Justice Department
Abstract
The Department of Justice is proposing a rule to implement the Homicide Victims' Families' Rights Act of 2021. The proposed rule would explain and effectuate the Act's system for reviewing and, as warranted, reinvestigating murders investigated by Federal law enforcement agencies that remain unsolved after three years.
Full Text
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<title>Federal Register, Volume 90 Issue 12 (Tuesday, January 21, 2025)</title>
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[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Proposed Rules]
[Pages 6879-6894]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-01159]
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DEPARTMENT OF JUSTICE
28 CFR Part 95
[Docket No. OAG 182; AG Order No. 6144-2025]
RIN 1105-AB70
Homicide Victims' Families' Rights Act
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice is proposing a rule to implement the
Homicide Victims' Families' Rights Act of 2021. The proposed rule would
explain and effectuate the Act's system for reviewing and, as
warranted, reinvestigating murders investigated by Federal law
enforcement agencies that remain unsolved after three years.
DATES: Written and electronic comments must be sent or submitted on or
before March 24, 2025. Comments received by mail will be considered
timely if they are postmarked on or before the last day of the comment
period. The electronic Federal Docket Management System will accept
electronic comments until midnight eastern time at the end of that day.
ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office
of Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue
NW, Room 4234, Washington, DC 20530. To ensure proper handling, please
reference RIN 1105-AB70 or Docket No. OAG 182 on your correspondence.
You may submit comments electronically or view an electronic version of
this proposed rule at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office
of Legal Policy, U.S. Department of Justice, Washington, DC, 202-514-
3273.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Posting of Public Comments. Interested persons are invited to
participate in this rulemaking by submitting written data, views, or
arguments on all aspects of this rule via one of the methods and by the
deadline stated above. The Department of Justice (``Department'') also
invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing these
procedures will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Such information includes personally identifying
information (``PII'') (such as your name, address, etc.).
Interested persons are not required to submit their PII in order to
comment on this rule. However, any PII that is submitted is subject to
being posted to the publicly accessible website at <a href="http://www.regulations.gov">http://www.regulations.gov</a> without redaction.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Confidential business information identified and located as set
forth above will not be placed in the public docket file. The
Department may withhold from public viewing information provided in
comments that it determines may impact the privacy of an individual or
is offensive. For additional information, please read the Privacy Act
notice that is available via the link in the footer of <a href="http://www.regulations.gov">http://www.regulations.gov</a>. To inspect the agency's public docket file in
person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact
information.
II. Overview
The Homicide Victims' Families' Rights Act of 2021 (``Act'' or
``HVFRA''), which was enacted on August 3, 2022, Public Law 117-164,
136 Stat. 1358, provides a system for the review of case files, and for
carrying out further investigation as warranted, in murder cases
investigated by Federal law enforcement agencies that have gone
unsolved for over three years. The general objective of the Act is to
facilitate the identification of the perpetrators of these ``cold
case'' murders and thereby help to bring the perpetrators to justice
and provide closure for the victims' families.
The Act specifically provides for carrying out case file reviews in
cold case murder investigations on application by certain family
members of the victim, and for further investigation if the case file
review concludes that a full reinvestigation would result in probative
investigative leads. The Act also directs the collection and
publication of statistics on the number of cold case murders and
reports to the House and Senate Judiciary Committees on the operation
and results of the system established by the Act.
This proposed rule would add a new part 95 to title 28 of the Code
of Federal Regulations to implement the Act. The new part would explain
the Act's requirements and key concepts, and it would specify
assignments of responsibility and procedures to ensure that the Act is
effectively carried out.
III. Legal Authority
The Department of Justice is issuing this rule pursuant to the
HVFRA and the authority of the Attorney General under Executive Order
11396, 33 FR 2689 (Feb. 7, 1968).
[[Page 6880]]
IV. Section-by-Section Analysis
The proposed rule would provide a statement of purpose in Sec.
95.1 and define key terms in Sec. 95.2. Section 95.3 would explain
what is required in cold case murder file reviews. Section 95.4 would
set out procedures for victims' family members to apply for file
reviews and for action on the applications by the responsible
investigative agencies. Section 95.5 would explain the Act's
requirements relating to full reinvestigations. Section 95.6 would
direct that case file reviews and reinvestigations be carried out in a
cohesive manner when multiple agencies are involved. Section 95.7 would
address consulting with and informing applicants, and keeping them up
to date about case file reviews and reinvestigations. Section 95.8
would articulate the Act's timing rules for successive applications.
Sections 95.9, 95.10, and 95.11 would address the Act's requirements
relating to compliance, data collection, and annual reports. Section
95.12 would incorporate a provision of the Act that allows the
withholding of information whose disclosure would have serious adverse
effects or be unlawful. More detailed descriptions of these provisions
follow.
A. Section 95.1--Purpose
The Act creates a system for reviewing and, as warranted,
reinvestigating murder cases previously investigated by Federal
agencies in which ``all probative investigative leads have been
exhausted'' and ``no likely perpetrator has been identified'' after
three years, HVFRA 12(6), upon application by certain persons. Section
95.1 would state this general purpose of the Act in terms similar to
the Act's full title (``To provide for a system for reviewing the case
files of cold case murders at the instance of certain persons, and for
other purposes.'').
B. Section 95.2--Definitions
1. Paragraph (a)--Designated Person
Section 95.2(a) would define ``designated person'' for purposes of
the Act, which refers to the class of individuals who may apply for
cold case murder reviews. Section 12(1) and (2) of the Act state that
the term includes an ``immediate family member,'' defined to mean a
parent, parent-in-law, grandparent, grandparent-in-law, sibling,
spouse, child, or step-child of a murder victim, and ``someone
similarly situated'' to an immediate family member, ``as defined by the
Attorney General.'' While the express statutory definition of immediate
family member includes a parent, child, or step-child, it does not
include a step-parent. Pursuant to the Attorney General's authority
under section 12(1) of the Act, Sec. 95.2(a) would define ``designated
person'' to include a step-parent, as a person ``similarly situated''
to a parent, in addition to immediate family members as defined in the
statute.
2. Paragraph (b)--Victim
Section 95.2(b) of the proposed rule, as provided in section 12(3)
of the Act, would define ``victim'' to mean a natural person who died
as a result of a cold case murder.
3. Paragraph (c)--Murder
Section 95.2(c) of the proposed rule would implement section 12(4)
of the Act, which defines ``murder'' to mean ``any criminal offense
under section 1111(a) of title 18, United States Code, or any offense
the elements of which are substantially identical to such section.''
Section 1111 of title 18 of the United States Code is the Federal
murder offense that applies directly in cases arising in the special
maritime and territorial jurisdiction of the United States, which
includes Federal lands and facilities as provided in 18 U.S.C. 7(3).
The first sentence of section 1111(a) defines ``murder'' as ``the
unlawful killing of a human being with malice aforethought.'' Malice
aforethought is generally understood to mean killing a person
intentionally, knowingly, or with extreme recklessness, albeit with
variations in the verbal formulas that courts use to explicate the
concept. See, e.g., United States v. Begay, 33 F.4th 1081, 1091 (9th
Cir. 2022). The second sentence of section 1111 specifies that certain
types of murder are first-degree murder, including premeditated murders
and murders committed in the course of other specified offenses. The
list of predicate offenses for this purpose includes ``arson, escape,
murder, kidnapping, treason, espionage, sabotage, aggravated sexual
abuse or sexual abuse, child abuse, burglary, [and] robbery.'' Courts
have interpreted the sentence in conformity with the traditional
felony-murder doctrine, which categorically treats the specified
offenses as involving murder if someone dies during the commission of
the offense, without requiring any particular culpability of the
offender with respect to resulting death. See, e.g., United States v.
Garcia Ortiz, 528 F.3d 74, 80-81 (1st Cir. 2008); United States v.
Tham, 118 F.3d 1501, 1508 (11th Cir. 1997).
The inclusion of ``any criminal offense under section 1111(a) of
title 18'' in the definition of murder in section 12(4) of the Act
broadly brings within the scope of the Act murders committed on Federal
lands, such as national parks and military bases. The proposed rule
would parallel the statutory inclusion of murders that directly violate
18 U.S.C. 1111 by providing in the first sentence of Sec. 95.2(c)(1)
that murder ``means an offense under 18 U.S.C. 1111.''
The second clause of the statutory definition of ``murder'' in
section 12(4) of the Act refers to offenses whose elements are
``substantially identical'' to section 1111(a). The first sentence of
paragraph (c)(1) in Sec. 95.2 of the proposed rule would interpret
this to mean other Federal offenses ``that incorporate[ ] by reference
the elements of 18 U.S.C. 1111.'' This interpretation understands the
``substantially identical'' language in section 12(4) of the Act to
include offenses whose substantive elements are identical to elements
of the substantive offense defined in 18 U.S.C. 1111(a), regardless of
differences in jurisdictional elements. For example, the offense of
murdering a Federal officer, in violation of 18 U.S.C. 1114(1), is
within the scope of the HVFRA, although the basis for jurisdiction
under 18 U.S.C. 1114 (Federal officer victim) is different from the
basis for jurisdiction under 18 U.S.C. 1111 (special maritime and
territorial jurisdiction).
The requirement of substantial identity to 18 U.S.C. 1111 is
satisfied by, and only by, offenses that appropriate the elements of
section 1111 by cross-reference. Other Federal homicidal offenses
(except those cross-referencing section 1111) define their elements in
varying ways--see, e.g., 18 U.S.C. 1112 (manslaughter); 21 U.S.C.
841(b) (up to life imprisonment for drug trafficking if death results
from use of controlled substance)--but they are not defined to be the
killing of a human being with malice aforethought as that concept is
understood in section 1111. The offenses identified in Sec.
95.2(c)(1), all of which incorporate by reference the elements of
section 1111, provide a comprehensive compilation of the Federal
offenses whose substantive elements match those of section 1111.
Offenses can incorporate by reference the elements of 18 U.S.C.
1111, and hence be ``substantially identical'' to section 1111, in
three ways--by expressly cross-referencing section 1111, e.g., 18
U.S.C. 1114(1); by referring to ``murder'' without further definition,
which is understood to mean murder as defined in 18 U.S.C. 1111(a),
[[Page 6881]]
e.g., 18 U.S.C. 1153; see United States v. Antelope, 430 U.S. 641, 642-
43, 647-48 & n.9 (1977); or by referencing a broader class of crimes
that includes 18 U.S.C. 1111, e.g., 18 U.S.C. 1152. Regardless of the
particular way in which an offense incorporates by reference the
elements of 18 U.S.C. 1111, offenses that satisfy this criterion are
within the scope of the HVFRA.
The initial language in Sec. 95.2(c)(1) includes ``an offense
under 18 U.S.C. 1111.'' This encompasses murders committed in the
special maritime and territorial jurisdiction of the United States, see
18 U.S.C. 7, in which section 1111 applies directly.
Section 95.2(c)(1)(i), which refers to 18 U.S.C. 1152 and 1153,
confirms the Act's coverage of Indian country murders. The first
paragraph of section 1152 says that Federal criminal laws that apply
``in any place within the sole and exclusive jurisdiction of the United
States . . . shall extend to the Indian Country''--the referenced
Federal criminal laws include section 1111(a)--subject to exceptions in
the second paragraph, such as offenses committed by Indians against
Indians. Section 1153 reaches ``major crimes'' committed by Indians in
Indian country, including ``murder,'' which is understood to mean
murder as defined in section 1111(a). Section 95.2(c)(1)(i) would make
the coverage of Indian Country murders explicit.
Section 1114 of title 18 proscribes killings of Federal officers or
employees performing their duties, and provides that violators shall be
punished ``in the case of murder, as provided under section 1111.''
Section 1114 through this cross-reference expressly incorporates the
elements and penalties of section 1111, satisfying in such cases the
Act's coverage of offenses whose elements are substantially identical
to section 1111(a). Section 95.2(c)(1)(ii) would make the Act's
coverage of murders of Federal officers or employees in violation of
section 1114 explicit, as well as murders of federally protected
persons under several other provisions. The other provisions, and their
relevant language and subdivisions that incorporate the elements of
section 1111(a) by reference, are:
<bullet> 18 U.S.C 115(b)(3) (murder under statute protecting
certain Federal officials, former officials, and their immediate family
members ``shall be punished as provided in section[ ] 1111'');
<bullet> 18 U.S.C. 351(a) (killing of certain high level Federal
officials ``shall be punished as provided by section[ ] 1111'');
<bullet> 18 U.S.C. 1116(a) (killing of foreign official, official
guest, or internationally protected person ``shall be punished as
provided under section[ ] 1111'');
<bullet> 18 U.S.C. 1121(a) (whoever intentionally kills a person
aiding a Federal criminal investigation ``shall be sentenced according
to the terms of section 1111'');
<bullet> 18 U.S.C. 1503(b)(1), 1512(a)(3)(A), 1513(a)(2)(A)
(killings under Federal obstruction of justice provisions subject to
``the punishment provided in section[ ] 1111'');
<bullet> 18 U.S.C. 1751(a) (killing of President, Vice President,
or members of their staffs ``shall be punished as provided by section[
] 1111'');
<bullet> 18 U.S.C. 1841(a), (b)(1) (applying section 1111 to murder
of child in utero and applying penalties of section 1111 to intentional
killing of child in utero under other specified provisions); and
<bullet> 7 U.S.C. 2146(b); 15 U.S.C. 1825(a)(2)(C); 21 U.S.C.
461(c), 675, 1041(b) (killing of persons while engaged in or on account
of their performance of official duties under Federal regulatory
schemes punishable ``as provided under section[ ] 1111'').
Section 1119(b) of title 18, in relevant part, provides that
killing by a U.S. national of a U.S. national who is outside the United
States but within the jurisdiction of another country ``shall be
punished as provided under section[ ] 1111.'' Section 2332(a)(1),
relating to the context of terrorist murders of U.S. nationals abroad,
provides that ``if the killing is murder (as defined in section
1111(a))'' the perpetrator shall be ``punished by death or imprisonment
for any term of years or for life.'' Section 95.2(c)(1)(iii) would
expressly confirm the Act's coverage of murder offenses under these
provisions, which proscribe killings of U.S. nationals outside of the
United States.
Section 95.2(c)(1)(iv) would identify other Federal murder offenses
that satisfy the criteria for coverage by the Act. These are:
<bullet> 18 U.S.C. 36(b)(2) (providing, in relation to drive-by
shootings in the context of major drug offenses, that a killing that is
``a first degree murder (as defined in section 1111(a))'' is punishable
by death or imprisonment for any term of years or life and that ``a
murder other than a first degree murder (as defined in section
1111(a))'' is punishable by imprisonment for any term of years or
life);
<bullet> 18 U.S.C. 924(j)(1) (providing, in relation to killing
with a firearm in a Federal crime of violence or drug trafficking
crime, that ``if the killing is a murder (as defined in section
1111),'' the punishment is death or imprisonment for any term of years
or life);
<bullet> 18 U.S.C. 930(c) (killings in the course of armed attacks
in or on Federal facilities ``shall be punished as provided in section[
] 1111'');
<bullet> 18 U.S.C. 1118 (person serving Federal life term of
imprisonment who commits ``a first degree or second degree murder (as
defined in section 1111)'' shall be punished by death or life
imprisonment);
<bullet> 18 U.S.C. 1120 (killing by person escaped from a Federal
correctional institution where he was serving a life term ``shall be
punished as provided in section[ ] 1111'');
<bullet> 18 U.S.C. 1652 (U.S. citizen pirate who ``commits any
murder . . . on the high seas . . . shall be imprisoned for life'');
<bullet> 18 U.S.C. 1958 (murder for hire punishable by death or
life imprisonment);
<bullet> 18 U.S.C. 1959(a)(1) (murder in aid of racketeering
punishable by death or life imprisonment);
<bullet> 18 U.S.C. 2245 (murder in course of sex offenses
punishable by death or up to life imprisonment);
<bullet> 18 U.S.C. 3261(a) (members of, and persons accompanying,
the armed forces who engage in conduct that would constitute a felony
if engaged in within the special maritime and territorial jurisdiction
of the United States--which includes murder under 18 U.S.C. 1111--shall
be punished as provided for that offense);
<bullet> 18 U.S.C. 3273(a) (certain Federal personnel stationed or
deployed in Canada who engage in conduct that would be federally
prosecutable had the conduct occurred within the special maritime and
territorial jurisdiction of the United States--which includes murder
under 18 U.S.C. 1111--shall be imprisoned as provided for that
offense); and
<bullet> 49 U.S.C. 46506(1) (individual on an aircraft in the
special aircraft jurisdiction of the United States ``who commits an act
that . . . if committed in the special maritime and territorial
jurisdiction of the United States . . . would violate section . . .
1111 . . . shall be . . . imprisoned under that section'').
The proposed rule's definition of covered ``murder'' offenses in
Sec. 95.2(c)(1) accords with and encompasses the types of offenses
that the legislative history specifically references as within the
intended scope of the Act. The Act's sponsor, Rep. Swalwell, stated
regarding the Act: ``It also assists investigators in homicide cases
that serve important underserved communities such as Native Americans
[[Page 6882]]
on Indian Reservations, Federal law enforcement officers killed in
action, U.S. citizens who are murdered abroad, or homicides that take
place on Federal land and the high seas.'' 168 Cong. Rec. H3877; see
id. H3876 (remarks of Rep. Bentz) (``The majority of cold cases at
issue under this bill are likely to be cases arising from Tribal
jurisdictions.'').
In the sponsor's statement, ``homicides that take place on Federal
land and the high seas'' is a reference to the special maritime and
territorial jurisdiction of the United States, see 18 U.S.C. 7, in
which 18 U.S.C. 1111 applies directly. The prefatory language in Sec.
95.2(c)(1), referring to ``an offense under 18 U.S.C. 1111,'' includes
these cases. ``Native Americans on Indian Reservations'' in the
statement refers to Indian Country cases, which are prosecuted under 18
U.S.C. 1152 and 1153. Section 95.2(c)(1)(i), which refers to 18 U.S.C.
1152 and 1153, confirms the Act's coverage of Indian country murders.
``Federal law enforcement officers killed in action'' alludes to
murders in violation of 18 U.S.C. 1114, which is included in Sec.
95.2(c)(ii). ``U.S. citizens who are murdered abroad'' refers to the
offenses that proscribe extraterritorial killings of U.S. nationals, 18
U.S.C. 1119 and 2332, which are included in Sec. 95.2(c)(1)(iii).
In addition to clarifying the types of offenses that are
``murders'' for purposes of the Act, the proposed rule, in Sec.
95.2(c)(2), would identify certain types of offenses that are not
covered.
Section 95.2(c)(2)(i) would state that murders in which the victims
died before January 1, 1970, are not covered. This provision implements
section 11 of the Act, which limits the Act's applicability to cold
case murders occurring on or after January 1, 1970.
Section 95.2(c)(2)(ii) would provide that the scope of the Act and
the proposed rule is limited to cases involving murders in violation of
Federal law, as opposed to offenses that violate only the laws of a
State, the District of Columbia, or a U.S. territory. While Federal
agencies may help State and local agencies in the investigation of non-
Federal crimes, see, e.g., 28 U.S.C. 540-540B, that does not bring
those investigations within the scope of the Act, which is intended to
apply ``[i]n federal cases.'' H. Rep. No. 117-280, at 6; see 168 Cong.
Rec. H3876 (remarks of Rep. Bentz) (``[T]his bill would only apply to
Federal cases of murder, and it wouldn't apply to murder cases
investigated by State and local law enforcement, which are most
cases.''). The Act was not intended to supplant the role of State and
local law enforcement, which have primary responsibility for the
investigation of murders under the laws of their jurisdictions and are
best situated to review and reinvestigate cold cases involving those
crimes; rather, the expectation was that the enactment of such a law
for Federal cases ``will . . . serve as a crucial model for the States
to . . . adopt a local Homicide Victims Bill of Rights.'' 168 Cong.
Rec. H3877 (remarks of Rep. Swalwell).
As a corollary to the limitation to cases involving Federal crimes,
case file reviews and reinvestigation are not required in cases in
which it has been determined that Federal jurisdiction is lacking. For
example, suppose that a witness or informant in a Federal case is
killed and the case is initially investigated as a possible retaliatory
murder under 18 U.S.C. 1513. Interviews with witnesses to the incident
show, however, that the killing resulted from the victim's provoking a
bar fight with a stranger that turned lethal, with no connection to the
victim's involvement in Federal proceedings. Such a case is outside the
scope of the Act because it does not involve a murder in violation of
Federal law.
More broadly, Sec. 95.2(c)(2)(iii) would provide that the Act's
scope does not include incidents in which there was no murder as
defined in Sec. 95.2(c)(1). For example, suppose that a Federal agent
is found dead, and the case is initially investigated as a possible
murder in violation of 18 U.S.C. 1114 because the agent had been
pursuing dangerous criminals who would have reason to kill him. The
investigation is closed when a fuller examination of the evidence shows
that the agent died of natural causes or because of an accident. Such
cases are outside the scope of the Act because its application is
limited to murder cases that satisfy certain criteria. See HVFRA 12(6).
Conversely, a case may be within the scope of the Act even if it
was not initially investigated as a murder. For example, the
investigation may begin as a missing person case, in which it is
uncertain whether the person is alive or dead. Or it may start as a
case involving a fatality, but one in which the known facts are
consistent with accidental death, suicide, or involuntary manslaughter.
As the case progresses, however, fuller knowledge of the facts and
circumstances indicates the commission of a murder as defined in Sec.
95.2(c). If the other conditions defining a ``cold case murder'' are
also satisfied, see HVFRA 12(6), such a case would be subject to the
Act.
The definition of ``murder'' in section 12(4) of the Act, and its
construction in Sec. 95.2(c) of the proposed rule, also limit the
class of Federal crimes that are subject to the Act. Beyond the
statutes identified in Sec. 95.2(c)(1), there are many other
provisions of Federal law that define and prescribe penalties for
homicidal crimes. For example, 21 U.S.C. 841 prohibits producing or
distributing a controlled substance, and it provides for imprisonment
between 20 years and life if death results from the use of the
controlled substance. Such provisions, though they include parts
defining homicidal offenses, are not within the scope of the Act
because their elements are not substantially identical to 18 U.S.C.
1111, as required by the statutory and regulatory definition of
``murder'' for purposes of the Act.
4. Paragraph (d)--Agency
Section 95.2(d) of the proposed rule would track the definition of
``agency'' in section 12(5) of the Act, which means Federal law
enforcement entities with jurisdiction to engage in the detection,
investigation, or prosecution of cold case murders. The proposed rule
would explain that this definition excludes State and local law
enforcement agencies and agencies of the District of Columbia and U.S.
territories from the class of agencies subject to the Act.
5. Paragraph (e)--Principal Investigative Agency
Section 95.2(e) of the proposed rule would define ``principal
investigative agency'' to mean ``the federal investigative agency that
had the primary responsibility for the initial investigation of a
murder.'' Section 95.2(e) would exclude a Federal agency from this
definition if a ``a murder was investigated by state or other non-
federal authorities and the role of federal agencies was the provision
of investigative assistance,'' if ``a murder was investigated by a
federal agency but thereafter state or other non-federal authorities
assumed the primary responsibility for the investigation,'' or if the
Federal agency is a prosecutorial agency of the Department of Justice.
The definition would serve three purposes:
First, more than one Federal agency may be involved in the
investigation of a murder. The Act presupposes that the case file
reviews and reinvestigations it requires will be carried out by the
agency that ``conducted the initial investigation,'' as provided in
section 10 of the Act. This is naturally understood to refer to the
agency with the lead role in the prior investigation, as opposed to
agencies that just assisted or played a
[[Page 6883]]
peripheral role. The agency with the lead role in the prior
investigation logically should be responsible for receiving and acting
on applications by family members of the victim for case file reviews.
That agency is best situated to carry out such reviews and to undertake
further investigation if warranted. The definition of ``principal
investigative agency'' in the proposed rule accordingly would assign
these functions to the Federal investigative agency that had the
primary responsibility for the initial investigation. If it is unclear
which of a number of Federal agencies had primary responsibility--for
example, because different agencies had the lead role at different
stages in the previous investigation--Sec. 95.4(c)(1) of the rule
would make them jointly responsible for ensuring that the Act's
requirements are carried out.
Second, the proposed rule would make clear that the Federal
agencies with responsibilities under the Act are Federal investigative
agencies, as opposed to prosecutorial agencies. The prosecution of
Federal crimes is carried out by the United States Attorneys' Offices
and by the prosecutorial components of the Justice Department's
litigating divisions, such as the Criminal Division and the National
Security Division. Federal prosecutors may be involved to varying
degrees at the investigative stage of murder cases within Federal
jurisdiction, and they are necessarily involved where there is a need
to secure or use legal process in the investigation, such as search
warrants or grand jury subpoenas. Nevertheless, the functions required
under the Act are properly carried out by investigative agencies rather
than prosecutors, and the proposed rule would specify that the Justice
Department's prosecutorial units are not to be considered the principal
investigative agency in any case.
Third, in cases in which there is concurrent State and Federal
jurisdiction over a murder, both State and Federal authorities may be
involved in the investigation. The question then arises whether the
investigation was a Federal investigation, which is within the scope of
the Act, or a State investigation, which is not. See 168 Cong. Rec.
H3876 (remarks of Rep. Jackson Lee) (stating that the Act applies ``in
cases investigated at the Federal level''); id. (remarks of Rep. Bentz)
(stating that the Act ``wouldn't apply to murder cases investigated by
State and local law enforcement'').
The proposed rule's definition of ``principal investigative
agency'' would provide for Federal agency responsibility where the
Federal agency was primarily responsible for the investigation of a
murder, but not where the investigation was pursued as a State matter
and the role of Federal agencies was limited to providing investigative
assistance. Federal law enforcement agencies frequently provide
investigative assistance to their State and local counterparts, which
may involve such measures as sharing information and intelligence,
carrying out forensic testing and analysis, interviewing witnesses, and
other collection of evidence and information. Federal legal process may
also come into play, complementing and supplementing the capabilities
of the responsible State agencies--for example, execution of Federal
search warrants or subpoenas in places outside the State agency's
jurisdiction, or at the early stages of an investigation that is
ultimately pursued primarily as a State matter. The proposed rule's
definition would make it clear that such measures in the regular
conduct of Federal-State cooperation in criminal investigations do not
convert State investigations into Federal investigations.
6. Paragraph (f)--Initial Investigation
Section 95.2(f) would define ``initial investigation'' to mean
``the investigation of a murder before it became a cold case murder.''
This is a technical definition that, in the context of the proposed
rule, would assign responsibility for case file reviews and potential
reinvestigation of a cold case murder to the agency that previously
investigated the murder.
7. Paragraph (g)--Cold Case Murder
Section 95.2(g) would track the definition of ``cold case murder''
in section 12(6) of the Act. The conditions in the definition are that
(i) the time of the murder's commission (interpreted to mean the time
when the victim died) was more than three years prior to the
application for case file review, (ii) the murder was previously
investigated by a Federal law enforcement entity, (iii) all probative
leads have been exhausted, and (iv) no likely perpetrator has been
identified. Murders involving multiple perpetrators in which one or
more of them have been identified are not within the scope of the Act.
8. Paragraph (h)--Probative Leads
Section 95.2(h) would define ``probative leads'' to mean
``information that identifies the perpetrator or that provides a
sufficient likelihood of enabling the identification of the perpetrator
to warrant further investigation, in the agency's judgment and
consistent with the agency's policies and practices regarding the use
of investigative methods.'' This key concept in the Act determines,
among other things, whether the results of a case file review warrant
further investigation, and what the objective of a reinvestigation
should be. The Act uses this term or similar phrases in a number of
places, but with varying wording and without further definition. See
HVFRA 2(a) (requiring case file review to determine if a full
reinvestigation would result in ``the identification of probative
investigative leads or a likely perpetrator''); id. (2)(b)(4)
(requiring update of case file using the most current investigative
standards to the extent it would ``help develop probative leads''); id.
(2)(c) (requiring certification that ``all probative investigative
leads have been exhausted or that a likely perpetrator will not be
identified''); id. 4(a) (requiring reinvestigation if ``a full
reinvestigation . . . would result in probative investigative leads'');
id. 4(b) (requiring analysis of all evidence in a reinvestigation ``for
the purpose of developing probative investigative leads or a likely
perpetrator''); id. 12(6)(C) (defining ``cold case murder'' in part as
one ``for which all probative investigative leads have been
exhausted'').
These provisions do not require pursuit of all possible leads, but
only those that are ``probative.'' Determining what leads are
``probative,'' so as to warrant further investigation, calls for
exercises of judgment by the investigative agency. The reference to
``probative'' leads also raises the question--probative of what?--a
matter for which further definition is required to provide clear
guidance to investigative agencies in discharging their
responsibilities under the Act.
Section 95.2(h) in the proposed rule would provide the needed
clarification by defining this term--probative leads--to mean
information that identifies the perpetrator, or that provides a
sufficient likelihood of enabling the identification of the perpetrator
so as to warrant further investigation in the agency's judgment. The
definition is based on the contexts in which the Act uses the term or
similar terms and the Act's general design and purpose to address and
solve cases in which ``no likely perpetrator has been identified.''
HVFRA Sec. 12(6)(D). Variant terminology, ``probative investigative
leads,'' which is used in some provisions of the Act, is understood to
have the same meaning.
The proposed rule's definition of ``probative leads'' also would
specify that the agency's policies and practices
[[Page 6884]]
regarding the use of investigative methods must be taken into account--
policies and practices that affect whether leads are potentially
probative regarding the perpetrator's identity, as bearing on the
reliability of investigative methods and what methods would actually be
used in a reinvestigation. In the investigation of murders and other
crimes, Federal agencies are guided and constrained by policies and
practices that ensure the reliability and effectiveness of the methods
utilized in the investigation, and ensure respect for legal norms and
the privacy of persons affected by the investigation. These policies
and practices apply in reinvestigations under the HVFRA as they do in
other investigative contexts. To the extent that a method would not be
utilized under the applicable policies and practices, the theoretical
possibility of using it is not a positive factor in judging whether
further investigation is warranted under the Act.
For example, the legislative history of the Act emphasizes the use
of technological improvements to solve cold cases:
Because advances in science progress rapidly, new technology
could have been discovered and implemented in the time since
detectives last revisited the case. The Office of Justice Programs
reports advancements in DNA technology are breathing new life into
old, cold, and unsolved criminal cases. Investigators in California
used new DNA technology to apprehend the Golden State Killer, a case
that had remained cold for decades.
H. Rep. No. 117-280, at 6 (internal quotation marks omitted); see
168 Cong. Rec. H3877 (remarks of Rep. Swalwell) (``Improvements in
technology . . . will also better equip law enforcement agencies with
tools . . . that would assist in identifying new leads . . . to solve
crimes'').
As the Committee Report notes, H. Rep. No. 117-280, at 6, the
emergence and progressive development of DNA identification technology
has revolutionized the investigation of cold cases and has produced
remarkable results in innumerable cases. At the same time, the use of
DNA methods is subject to policies and practices that promote its sound
use and guard against adverse effects. Regular DNA testing in criminal
investigations is carried out in conformity with the rules and
procedures of the Combined DNA Index System. See generally Maryland v.
King, 569 U.S. 435, 442-46, 463-66 (2013). The use of forensic genetic
genealogy--referenced in the Act's Committee Report for solving the
Golden State Killer case--is subject to policies tailored to its
operation and characteristics. See United States Department of Justice,
Interim Policy, Forensic Genetic Genealogical DNA Analysis and
Searching (Nov. 1, 2019).
Thus, in assessing whether further investigation is warranted under
the HVFRA, it is not sufficient to note that there is some retained
evidence in the case to which an investigative method or technique
might in theory be applied. The agency would also need to consider
whether and to what extent the relevant investigative method would
actually be used in a reinvestigation, consistent with applicable
policy and practice, and whether it holds sufficient promise under the
facts of the case to warrant further investigation in the agency's
judgment. For example, if a family member of the victim sought
reopening of a cold case murder investigation, based on a novel DNA
identification method they read about that has not been scientifically
validated, an agency would not be required to act on such a request
under the HVFRA if it would not use that unproven method in other
investigative contexts.
The same consideration applies in relation to other methods the use
of which is restricted or forgone under an agency's general policies
and practices. For example, in a cold case murder, a relative of the
victim may seek to have the victim's body exhumed for purposes of
additional examination or forensic testing. Investigative agencies may
not often agree with such requests. Rather, the likelihood that
significant new information will be obtained is assessed, and any
potential value is balanced against the sensitivity of disinterring the
deceased. General policies and practices regarding exhumation need to
be taken into account in assessing whether it should be done in a case
subject to the HVFRA, as in other investigative contexts.
While the requirement under the Act to pursue ``probative leads,''
as defined in Sec. 95.2(h), pertains only to matters that could
facilitate the identification of the perpetrator, this does not limit
the authority of any agency to carry out case file reviews or
investigate or reinvestigate murder cases for other purposes. As with
other aspects of the Act, this proposed rule would only articulate what
agencies must do to comply with the Act and would not restrict their
ability to go beyond the Act's requirements, on their own initiative or
as requested by others. In relation to investigative leads, in
particular, agencies are free to review and reinvestigate murder cases
for any lawful purpose, such as learning more about the circumstances
of a murder or what happened to the victim, regardless of whether the
review or reinvestigation may help to identify the perpetrator.
C. Section 95.3--Case File Review
Section 95.3 of the proposed rule would implement section 2 of the
Act, relating to case file reviews.
Section 95.3(a) of the proposed rule would provide for review of
case files upon written application by one designated person, following
section 2(a) of the Act.
Section 95.3(b) of the proposed rule would reproduce the required
elements of a case file review, as set forth in section 2(b) of the
Act, and explain specifically how they should be carried out by
reviewers. Paragraphs (1) through (3) of Sec. 95.3(b) would detail the
requirements for reviewing what investigative steps may have been
missed, whether witnesses should be interviewed or reinterviewed, and
whether all appropriate forensic testing and analysis was performed in
the first instance or if additional testing may be productive.
Paragraph (4) in Sec. 95.3(b) would resolve ambiguous language in
section 2(b)(4) of the Act, which requires that a case file review
include ``an update of the case file using the most current
investigative standards as of the date of the review to the extent it
would help develop probative leads.'' The initial phrase in this quoted
language, ``an update of the case file,'' might be understood to
require technical enhancements of the case file, such as digitizing
documents and creating links to other records. The latter language,
``using the most current investigative standards as of the date of the
review,'' would more naturally be understood as requiring consideration
of whether reinvestigation in conformity with current investigative
standards would help develop probative leads.
Section 95.3(b)(4) of the proposed rule would give weight to the
latter language in interpreting section 2(b)(4) of the statute because
it is more consistent with the statutory context of case file review to
determine whether reinvestigation is warranted, and because an intended
aspect of the review would otherwise not be referenced in the statute.
The other three paragraphs in section 2(b) of the Act are concerned
respectively with whether there were missed steps in the original
investigation, whether there were shortfalls in interviewing witnesses,
and whether there were shortfalls in forensic testing and analysis.
They do not require consideration of whether there were shortfalls in
comparison with current investigative standards, though such
[[Page 6885]]
consideration should be part of case file review in unsolved murder
cases--including in particular Indian country murders--in line with the
legislative intent in the HVFRA:
The majority of cold cases at issue under this bill are likely
to be cases arising from Tribal jurisdictions . . . . [E.O. 13898]
took steps to try to solve cold cases in Tribal jurisdictions . . .
creat[ing] the Operation Lady Justice Task Force . . . . In its
first year, this task force opened seven offices across the country
to address the number of missing and murdered indigenous women. The
task force held listening sessions, Tribal consultations, webinars,
meetings with law enforcement, and victims' services programs, and
formed domestic violence and sexual assault coalitions . . . . The
task force put out guidance and protocols, developed relationships
with entities like missing persons clearing-houses, began training
for investigators and volunteers, and started a public awareness
campaign . . . . This legislation is cut from similar cloth . . . .
168 Cong. Rec. H3876-77 (remarks of Rep. Bentz); see id. H3878
(``The HVFRA assists families and loved ones of homicide victims by . .
. [p]roviding a full reinvestigation using the most up-to-date
technologies and investigative standards''); About DOJ Efforts to
Address MMIP, <a href="http://www.justice.gov/tribal/mmip/about">http://www.justice.gov/tribal/mmip/about</a> (containing a
description and sources regarding enhanced investigative measures,
relating to missing or murdered indigenous persons, under E.O. 14053
and 13898).
Paragraph (5) of Sec. 95.3(b) would direct the reviewer to notify
any other known Federal investigative agency that has been involved in
the case and to consider any information provided by such other agency.
The Act aims to ensure that reinvestigation decisions and the conduct
of reinvestigations are informed by all available evidence. See HVFRA
4(b), 6(a). Reaching out to other agencies that have investigated or
participated in the investigation of a murder is instrumental to
realizing this objective. For example, another Federal investigative
agency may have additional information about the case because it
initially responded to or investigated the crime before engaging the
principal investigative agency, or because it assisted the principal
investigative agency in carrying out its investigation. The
requirements of Sec. 95.3(b)(5) accordingly would help to ensure that
reinvestigation decisions and the conduct of reinvestigations are
informed by all available evidence.
Section 95.3(c) of the proposed rule would implement section 2(d)
of the Act, which bars having the reviewer be a person who previously
investigated the murder. The proposed rule would add that this
restriction does not limit the reviewer in getting information from or
consulting with people who were previously involved. Consulting such
people may be especially valuable in understanding the case, and the
reasons why things were done or not done in the previous investigation,
and doing so does not conflict with the Act's objective of having
``fresh eyes'' cast on the case. H. Rep. No. 117-280, at 6; 168 Cong.
Rec. H3876, 3879 (remarks of Rep. Jackson Lee).
Section 95.3(d) of the proposed rule would track section 2(e) of
the Act, which requires the agency to promptly notify the applicant
regarding receipt of the application and the applicant's rights under
the Act.
Section 95.3(e) of the proposed rule would implement section 2(c)
of the Act, which states that case file review is unnecessary where the
case ``does not satisfy the criteria for a cold case murder,'' and
directs the agency to certify in such a case ``that final review is not
necessary because all probative investigative leads have been exhausted
or that a likely perpetrator will not be identified.'' The
certification described in section 2(c) does not reflect the
circumstances in which the criteria for a cold case murder under the
Act are not satisfied. Rather, the criteria for a ``cold case murder''
are not satisfied if the murder was committed within three years prior
to the application, the murder was not previously investigated by a
Federal law enforcement entity, all probative investigative leads have
not been exhausted, or a likely perpetrator has been identified. HVFRA
12(6). To resolve this inconsistency, the proposed rule would provide
that the agency is to certify in such a case that the cold case murder
criteria are not satisfied and to inform the applicant of the reason
for the denial.
D. Section 95.4--Review Procedures
Section 95.4(a) of the proposed rule would implement section 3 of
the Act, which requires each agency to develop a written application to
be used in requesting case file reviews. The proposed rule would add
that this requirement can be satisfied by an agency's adopting a
standard form developed by the Government or another organizational
unit of the Government.
Section 95.4(b) would state that an application for case file
review may be denied if it is submitted to the wrong agency, i.e., an
agency that did not previously investigate the murder or was not the
principal investigative agency in the investigation. However, in such a
case, the proposed rule would require the agency that receives the
application to advise the applicant of the problem, and, if that agency
is aware of another Federal investigative agency that was the principal
investigative agency, to transfer the application to the appropriate
agency if the applicant so wishes. If no Federal agency was the
principal investigative agency in the initial investigation, then the
case is outside the scope of the Act, but the proposed rule would
direct the agency to which the application was submitted to point the
applicant toward any known State or local agency that investigated the
case.
Section 95.4(c)(1) would address situations in which more than one
agency participated in the investigation of a murder. It would require
coordination among the agencies so that there is only one case file
review or full reinvestigation going on at any one time, following
sections 2(f), 4(d), and 10 of the Act. The proposed rule generally
assigns responsibility for case file reviews and reinvestigation to the
principal investigative agency in the initial investigation. In case of
disagreement among the agencies involved about who had primary
responsibility for the prior investigation, Sec. 95.4(c)(1) would
direct them to jointly consider the application and collaborate in
carrying out any case file review or reinvestigation, or responsibility
for those functions could be assumed by or assigned to one of the
agencies.
Section 95.4(c)(2) would address situations in which a family
member of the victim submits an application for case file review, and
then another family member submits an application with respect to the
same victim during the pendency of the first application or a resulting
case file review or reinvestigation. The latter application would
conflict with the specification in section 2(a) of the Act that ``one
designated person'' may apply for a case file review, which ensures
that the responsible agency can deal in an orderly and efficient way
with a single family contact. Section 95.4(c)(2) would provide that the
agency need not take any action based on the later application, but in
such a case the agency shall advise the later applicant that there was
an earlier application, and the agency may consider any information
provided by the later applicant.
Section 95.4(c)(3) would state that only one case file review shall
be undertaken at any one time with respect to the same cold case murder
victim, tracking section 2(f) of the Act. The proposed rule would add
that, for cases in which multiple applications are
[[Page 6886]]
received with respect to different victims of a murder, any resulting
case file reviews may be consolidated. While the Act does not require
consolidation in the latter circumstance, conducting a single unified
case file review may further the Act's objective of ensuring that all
available evidence is fully considered.
Section 95.4(d) would implement section 2(g) and (h) of the Act,
setting up a general six-month time limit for completing case file
reviews, but allowing one extension of up to six months in certain
circumstances.
E. Section 95.5--Full Reinvestigation
Section 95.5(a) of the proposed rule would require a full
reinvestigation if a case file review concludes that it would result in
probative leads, following section 4(a) of the Act. Section 95.5(a)
would refer to the proposed rule's definition of ``probative leads'' in
Sec. 95.2(h), which requires reinvestigation if there is information
that identifies the perpetrator or that provides a sufficient
likelihood of enabling the identification of the perpetrator to warrant
further investigation, in the agency's judgment and consistent with its
policies and practices for use of investigative methods. In referring
to the conclusion of a case file review, the Act contemplates, in
accordance with its objective of solving cold case murders, that the
agency will consider all the information it has at the time of the
review in deciding whether to reinvestigate, including any new
information provided by the applicant, not only information that
appears directly in the case file. See HVFRA Sec. 6 (implying that
newly discovered evidence would be taken into account in case file
review and reinvestigation decisions); H. Rep. No. 117-280, at 6
(``[N]on-law enforcement personnel finding new evidence in homicide
cases serve as examples where a fresh perspective can help break a case
open.''); 168 Cong. Rec. H3877 (daily ed. Mar. 28, 2022) (remarks of
Rep. Swalwell) (explaining that the HVFRA ``requires a complete
reexamination of the file and accompanying evidence'').
Section 95.5(b) of the proposed rule would specify what an
investigative agency needs to do in conducting a full reinvestigation
under the HVFRA. Section 95.5(b) first would define a full
reinvestigation as one in which all new probative leads are exhausted.
This definition is based on section 12(6)(C) of the Act, which defines
a cold case murder in part as a murder ``for which all probative
investigative leads have been exhausted''; section 2(a) of the Act,
which directs the agency to review the case file to determine if a full
reinvestigation would result in ``the identification of probative
investigative leads or a likely perpetrator''; and section 4(a) of the
Act, which directs the agency to conduct a full reinvestigation if the
case file review concludes that it would result in ``probative
investigative leads.'' These provisions manifest a purpose to address
cases that have gone cold, in the sense that previously investigated
leads that might have resulted in the identification of the perpetrator
have not panned out; provide means for developing new potentially
perpetrator-identifying leads through case file review; and follow up
on those new leads to determine whether their promise for identifying
the perpetrator can be realized.
Section 95.5(b) next would provide additional specifications
regarding the conduct of full reinvestigations. Paragraph (b)(1) would
require an investigative agency to analyze all evidence regarding the
murder for the purpose of developing probative leads, following section
4(b) of the Act. The evidence available to the agency at the time of an
HVFRA reinvestigation includes the content of the case file from the
initial investigation and associated evidence retained from the initial
investigation; any additional information that has been provided by the
relative of the victim who applied for the case file review or that has
come to the agency from other sources; and any additional leads or
information that the agency may discover or develop in the course of
the reinvestigation. The direction of Sec. 95.5(b)(1) is to apply the
whole body of evidence in furtherance of identifying the perpetrator.
Paragraph (b)(2) would provide that a full reinvestigation under
the HVFRA does not require pursuit of leads that are insufficiently
probative with respect to the potential identification of the
perpetrator to warrant further investigation in the agency's judgment,
or that would require the use of investigative methods inconsistent
with the agency's policies or practices. This is a reiteration, for
clarity and explicitness, of limitations appearing in the definition of
``probative leads'' in Sec. 95.2(h).
The reinvestigation criteria of Sec. 95.5(a) and (b) of the
proposed rule do not require investigative agencies to modify or waive
their normal standards for initiating and conducting investigations, if
consistent with the Act's requirements. For example, consider the
Attorney General's Guidelines for Domestic FBI Operations (``FBI
Guidelines'' or ``Guidelines''), <a href="http://www.justice.gov/archive/opa/docs/guidelines.pdf">http://www.justice.gov/archive/opa/docs/guidelines.pdf</a>. These Guidelines apply only to the FBI's
investigative activities, but other investigative agencies may have
similar policies or guidelines. As relevant to the HVFRA, the FBI
Guidelines authorize three levels of investigative activity:
assessments, preliminary investigations, and full investigations. Id.
Part II, pp. 16-22.
An assessment may be opened to obtain information about a Federal
crime. Assessments may be used to check out or resolve allegations or
other information concerning Federal crimes through the relatively non-
intrusive methods authorized in assessments, such as obtaining publicly
available information, checking government records, using online
services and resources, and interviewing witnesses. Id. at 17-20. An
HVFRA reinvestigation could be opened as an assessment under the
Guidelines in any case because the reinvestigation has the purpose of
obtaining information about the murder in question, specifically, the
identity of the perpetrator.
The Guidelines authorize the FBI to initiate a preliminary
investigation if there is information or an allegation indicating that
(i) a Federal crime may have occurred and (ii) investigation may obtain
information relating to the crime or the involvement or role of an
individual in the crime. Preliminary investigations may involve all
lawful investigative methods, with the exception of electronic
surveillance and intrusive searches. Id. Part II.B, pp. 20-22.
In the context of the HVFRA, the FBI's initial investigation of the
murder for which reinvestigation is sought implies that the FBI already
has information indicating the possible commission of a Federal crime--
i.e., the murder in question--which satisfies the first precondition
for opening a preliminary investigation. The second precondition under
the Guidelines for opening a preliminary investigation is also
satisfied, because the HVFRA's basis for requiring a reinvestigation is
probative leads resulting from the case file review. This ensures that
there is now a new lead such that further investigation may obtain
information relating to the murder or the involvement or role of an
individual (i.e., the heretofore unknown perpetrator) in the murder.
Accordingly, reinvestigations under the HVFRA may be opened as
preliminary investigations under the Guidelines. The methods excluded
in preliminary investigations--electronic surveillance and intrusive
searches--would then not be available. But if these methods were needed
to pursue the
[[Page 6887]]
probative leads underlying the reinvestigation and legally permitted,
they could be secured by opening or reopening the HVFRA reinvestigation
as a full investigation under the Guidelines.
The Guidelines allow the FBI to initiate a full investigation if
there is an articulable factual basis for the investigation that
reasonably indicates that (i) a Federal crime may have occurred and
(ii) the investigation may obtain information relating to the crime or
the involvement or role of an individual in the crime. Full
investigations may involve all lawful investigative methods. Id.
The preconditions for opening a full investigation under the
Guidelines are likely to be satisfied in any case involving
reinvestigation under the HVFRA. This is so because it is unlikely that
the FBI would have previously investigated a murder, and now judges,
following a case file review, that new leads are sufficiently likely to
enable the identification of the perpetrator to warrant further
investigation, in the absence of articulable facts that reasonably
indicate that (i) the murder may have occurred and (ii) the
reinvestigation may obtain information relating to the murder or the
involvement or role of an individual (i.e., the heretofore unknown
perpetrator) in the murder.
The preconditions for opening a full investigation under the
Guidelines will always be satisfied in HVFRA reinvestigation cases in
which opening a full investigation under the Guidelines is needed to
pursue the investigative methods excluded in preliminary
investigations--electronic surveillance and intrusive searches--and use
of those methods is legally permitted. This is so because the legal
predication requirements for authorizing those methods, including
probable cause, exceed the ``articulable factual basis'' required for
opening a full investigation under the Guidelines. On the other hand,
if the legal predication required for use of electronic surveillance or
intrusive searches is not satisfied, use of those methods would not be
required in an HVFRA reinvestigation, because only investigative
methods consistent with agency policy need be used, see Sec.
95.5(b)(2), and only lawful methods are consistent with the Guidelines.
It follows that when the conditions for required reinvestigation
under the HVFRA and the rule are satisfied, the conditions for
initiating an investigation under the Guidelines for the FBI's
investigative activities will also be satisfied. There is accordingly
no conflict or inconsistency between investigation or reinvestigation
in conformity with the Guidelines' standards and investigation or
reinvestigation in conformity with the HVFRA's requirements. The same
point would apply to other investigative agencies with investigative
policies resembling the FBI's in relevant respects.
Section 95.5(c) of the proposed rule would implement section 4(c)
of the Act, which provides that a reinvestigation shall not be
conducted by a person who previously investigated the murder. The
proposed rule would add that this does not limit consulting with or
obtaining information from a previously involved person, or using such
a person in a subordinate role in the reinvestigation. Engaging people
with previous knowledge of the case in a reinvestigation has similar
value to engaging such persons in case file reviews, as discussed
above, and does not conflict with the objectives of the Act.
Section 95.5(c) does not bar a person who carried out a case file
review under the Act from conducting or being involved in an ensuing
reinvestigation. It only precludes reinvestigation by a person who
previously investigated the murder. The heading of section 4(c) of the
Act, ``Reviewer,'' does not signify the contrary. It replicates the
heading of the corresponding provision regarding case file reviews,
section 2(d), and reflects in both contexts a policy of ensuring that
``fresh eyes'' will be cast on the case, H. Rep. No. 117-280, at 6; 168
Cong. Rec. H3876, 3879 (remarks of Rep. Jackson Lee), by prohibiting
people who previously investigated the case from conducting case file
review and any resulting reinvestigation. This policy does not imply
that the role of the case file reviewer in subsequent reinvestigation
should be restricted. The legislative history of the HVFRA further
confirms that the case file reviewer may conduct a resulting
reinvestigation under the HVFRA. H. Rep. No.117-280, at 10 (``The
person(s) conducting the full reinvestigation must not have previously
investigated the cold case murder at issue, except for the case file
review described in section 2.'') (emphasis added).
Section 95.5(d) would provide that there can be only one full
reinvestigation at any time with respect to the same cold case murder
victim, tracking section 4(d) of the Act. As with case file reviews,
the proposed rule would add that if reinvestigation is found to be
warranted with respect to multiple victims, the resulting
reinvestigations may be consolidated.
F. Section 95.6--Multiple Agencies
Section 95.6, which would track section 10 of the Act, would
require that case file reviews and reinvestigations be carried out in a
cohesive way when more than one agency is involved, so that there is
only one joint case file review or reinvestigation happening with
respect to a cold case murder at any time.
G. Section 95.7--Consultation, Updates, and Explanation
Section 95.7 would implement section 5 of the Act, regarding agency
consultations, updates, and explanation of reinvestigation decisions.
Section 95.7(a) and (b) would require investigative agencies to
consult with applicants and provide them with periodic updates. With
respect to consultation, the proposed rule would explain that this
requires discussing the application with the applicant on at least one
occasion.
Section 95.7(c) would require investigative agencies to meet with
the applicant and discuss the evidence to explain the decision whether
or not to reinvestigate at the conclusion of a case file review. There
are constraints on discussing the evidence in pending investigations
with private persons, as the Act recognizes in section 9, which
provides that information may be withheld if it would endanger the
safety of any person, unreasonably impede an ongoing investigation,
violate a court order, or violate legal obligations regarding privacy.
Additional concerns about disclosing investigative information include
potentially damaging the reputation of persons who come under
suspicion, but may eventually be cleared, and exposing them to
harassment and other adverse social consequences. Accordingly, Sec.
95.7(c) would make clear that the discussion of the evidence with an
applicant may be at an appropriate level of generality that does not
involve disclosing the information described in section 9 of the Act
and that is consistent with the general policies and practices
affecting the sharing of information with murder victims' family
members. See, e.g., The Attorney General Guidelines for Victim and
Witness Assistance, Arts. II.B, IV.I (2022 ed.).
Section 95.7(d) would provide that meetings required under Sec.
95.7 may be carried out in person, or through remote video
communication, the latter option often being more convenient for both
the agency and victims' family members. It further states that
consultations and updates may be
[[Page 6888]]
carried out in person, or through other means of communication, such as
over the phone or by email.
H. Section 95.8--Subsequent Reviews
Section 95.8 of the proposed rule would implement section 6 of the
Act, which provides that case file reviews and reinvestigations
generally do not have to be undertaken more frequently than at five-
year intervals.
Paragraph (a) of Sec. 95.8 would incorporate the basic rule that
case file reviews and reinvestigations need not be undertaken more
frequently than at five-year intervals, subject to a proviso for
situations in which ``there is newly discovered, materially significant
evidence.''
Paragraph (b) of Sec. 95.8 would explain the proviso for
situations involving new, material evidence. The proposed rule would
interpret this proviso in a manner consistent with the definition of
``probative leads'' in Sec. 95.2(h). Specifically, case file reviews
and reinvestigations may need to be undertaken at intervals of less
than five years only if there is evidence discovered subsequent to the
previous case file review or reinvestigation that identifies the
perpetrator, or that provides a sufficient likelihood of enabling the
identification of the perpetrator to warrant further investigation, in
the agency's judgment and consistent with its policies and practices
regarding the use of investigative methods.
Paragraph (c) of Sec. 95.8 would resolve an inconsistency in the
language of section 6 of the Act. Section 6(a) says that if a case is
not reinvestigated, ``no additional case file review shall be required
to be undertaken . . . for a period of five years.'' Section 6(b) says
that if a full reinvestigation is completed without identifying the
perpetrator, ``no additional case file review or full reinvestigation
shall be undertaken . . . for a period of five years.'' In other words,
where subsection (a) says that an agency is not required to engage in
further review of the case for five years, subsection (b) seems to say
that the agency cannot engage in further review of the case for five
years.
Considering the Act's purpose of promoting the solution of cold
case murders, the prohibitory language of subsection (b) appears to
reflect a drafting error that resulted from adding the ``required to
be'' language appearing in subsection (a) but neglecting to add the
same language in subsection (b). Cf. H.R. 3359, 117th Cong., 1st Sess.,
Sec. 7 (proposed HVFRA as originally introduced). No reason appears
why Congress, in enacting the HVFRA, would have sought to prohibit
agencies from exercising their broad discretion to reopen cold case
murder investigations if a case was reinvestigated unsuccessfully under
the HVFRA. ``Congress could not plausibly have intended'' this
``illogical'' outcome, Stovic v. Railroad Retirement Board, 826 F.3d
500, 505 (D.C. Cir. 2016), which would deprive agencies of their pre-
existing discretion to reopen the investigation of cold case murders at
any time, as warranted in their judgment, and would impose a
restriction on agency discretion to reopen murder investigations that
does not apply to reopening investigations of any other type of crime.
The rule would resolve the inconsistency by providing in Sec. 95.8
that ``[a]n agency may, in its discretion, review case files, continue
investigation, or reinvestigate notwithstanding the absence of an
application by a designated person or the time when previous review,
investigation, or reinvestigation occurred.''
I. Section 95.9--Procedures To Promote Compliance
Section 95.9(a) would implement section 8 of the Act by requiring
each agency to promulgate regulations to enforce the rights of
designated persons under the Act and ensure compliance, including
designation of an administrative authority to receive and investigate
complaints, training of appropriate personnel regarding the Act,
disciplinary sanctions for ``willful or wanton'' noncompliance, and a
procedure for resolving complaints.
Section 95.9(a)(1) would provide that the requirement to issue such
regulations applies to agencies that may be the principal investigative
agencies in murder investigations, because the proposed rule assigns
responsibility for carrying out the Act to those agencies. The proposed
rule would further specify that agencies need not separately promulgate
regulations to the extent they adopt, or are subject to, regulations
issued by another organizational unit of the Government regarding these
matters. For example, a Department that includes a number of agencies
that investigate murders may have Department-wide rules and processes
regarding training and disciplinary sanctions for violations of the
Act.
Section 95.9(a)(2) would specify the content of the regulations
that agencies must promulgate.
Section 95.9(a)(3) would provide that the ``agency'' for these
purposes may be a broader organizational unit of the Government in
which the principal investigative agency is situated. Many provisions
of the Act direct the responsible ``agency'' (or head of the agency) to
take certain actions. See HVFRA 2(a) (review of case file), 2(c)
(certification in lieu of review), 2(e) (confirmation of receipt of
application and notice of rights), 2(g) through (h) (time limits for
agency to conclude review), 4(a) (conduct of full reinvestigation), 5
(agency to consult, update, and meet with the applicant), 8 (complaint
and disciplinary functions to ensure compliance with the Act), 10
(multiple agencies to coordinate), 13 (submission of reports to
congressional committees). Depending on the nature of the required
action and the operational conditions and practices of the affected
governmental entities, it may make sense for the required actions to be
carried out by the particular governmental component that investigated
a case, or alternatively, at the departmental level or another broader
level. Either approach is legitimate and consistent with the Act's
definition of ``agency'' as ``a Federal law enforcement entity with
jurisdiction to engage in the detection, investigation, or prosecution
of a cold case murder,'' HVFRA 12(5), since both the individual
component and the broader organizational unit of Government in which it
is situated are governmental entities with law enforcement functions.
Section 95.9(a)(3) confirms this point with respect to the training,
complaint, and disciplinary functions described in HVFRA 8. For
example, with respect to the requirement of section 8(b)(1) of the Act
that the regulations designate an administrative authority ``within the
agency to receive and investigate complaints,'' a Department may decide
to assign this function to its Inspector General for all of its
components, taking ``the agency'' in this context to refer to the
Department as a whole. But it is also consistent with the Act if a
Department decides to assign these functions to its individual
investigative components, as Sec. 95.9(b) provides for the Department
of Justice.
Section 95.9(b) would implement the requirements of section 8 of
the Act with respect to the agencies of the Department of Justice
specifically, including the FBI, which is broadly responsible for
investigating murders within the scope of the Act. For the Justice
Department agencies, the training, complaint, and disciplinary matters
required by section 8 of the Act are most appropriately carried out by
the individual investigative agencies within the Department.
Section 95.9(b)(1) would require each such agency to provide
training for officers and employees involved in
[[Page 6889]]
carrying out the Act, following the requirement of section 8(b)(2) of
the Act.
Section 95.9(b)(2) would require each agency to designate an
official to receive and investigate complaints of HVFRA violations,
following the requirement of section 8(b)(1) of the Act. In some
instances the designated official may have a conflict of interest in
investigating a complaint, such as when the complaint relates to
actions the designated official was involved in. In such cases, the
proposed rule would direct the official to notify the entity within the
agency responsible for addressing or resolving such conflicts, and
investigation of the complaint may be assigned to a different official.
Section 95.9(b)(3) and (4) would carry out the requirement of
section 8(b)(4) of the Act to provide a procedure for the resolution of
complaints under the Act.
Section 95.9(b)(3) would provide initially that a complaint may be
submitted in writing by the person who requested the case file review
under section 95.3(a). Since the persons who have requested a case file
review under the Act are the individuals who have rights under the Act,
they are the appropriate persons to complain if the Act's requirements
have not been complied with. This would comport with the Act's
direction in section 8(a) that the agency must ``promulgate regulations
to enforce the right of a designated person to request a review under
this Act,'' and the Act's direction in section 8(b)(4) that the agency
must provide a procedure for the resolution of complaints filed by
``the designated person,'' i.e., the person who requested a case file
review.
Section 95.9(b)(3) further would provide timing rules for the
submission of complaints. These timing rules are designed both to
provide applicants adequate time to bring alleged violations of the Act
to the agency's attention, and to promote the prompt investigation of
potential violations and fairness to agency personnel who may be the
subject of complaints. The general time limit to submit a complaint is
one year after the complainant becomes aware of a violation. However, a
complaint would be timely within one year of the complainant's being
informed of the completion of a case file review or reinvestigation,
regardless of when the complainant became aware of the violation. The
time would be extended to five years after the application for case
file review was submitted if the agency did not inform the applicant
about completion of a case file review or reinvestigation, either
because a review or reinvestigation is ongoing or because the agency
failed to inform the applicant of the completion of a case file review
or reinvestigation as required by Sec. 95.7(b) and (c). Section
95.9(b)(3) also would state that a complaint submitted outside the
specified time frames must include an explanation for why it was not
timely submitted. If satisfied by the explanation, the agency could
entertain an untimely complaint, but only as a matter of discretion.
The remainder of Sec. 95.9(b)(3) would specify information to be
included in a complaint, to the extent the complainant is able, which
is needed to enable the agency official to investigate the complaint.
This includes providing identifying information for the complainant,
the case, and any agency officer or employee whose conduct is the
subject of the complaint, together with information about the nature of
the alleged violation, when and how it occurred, and any prior dealings
with agency personnel about it.
Section 95.9(b)(4) would direct the agency official to investigate
a complaint that satisfies the proposed rule's conditions, document and
close the investigation in conformity with agency procedures, and
inform the complainant about the disposition of the complaint. It
further directs the agency official to determine whether further action
is warranted. For example, if it is determined that measures required
by the Act were not taken, such as the consultation, updating, and
explanation requirements of section 5 of the Act, supplying the omitted
measures may now be warranted, and retraining or referral for
disciplinary action may be warranted for officers and employees who
violated the Act, depending on their culpability and the nature of the
violation.
Section 95.9(b)(4) would provide, however, that the complaint
procedure is not available to entertain complaints about the initial
investigation of the murder, or to revisit the agency's decision
whether reinvestigation is warranted under the Act. This reflects the
complaint procedure's function of promoting compliance with the Act and
addressing violations of the Act. Its purposes do not include reviewing
the conduct of the initial investigation or providing a second opinion
whether the results of a case file review under the Act warrant
reinvestigation.
Section 8 of the HVFRA, which is titled ``Procedures to Promote
Compliance,'' requires agencies to promulgate regulations that provide
a procedure for resolving complaints ``concerning the agency's handling
of a cold case murder investigation or the case file evaluation,'' in
order ``to enforce the right of a designated person to request a review
under this Act and to ensure compliance by the agency with the
obligations described in this Act.'' This statutory language is
naturally understood to require a complaint procedure to address
violations of the HVFRA--not to second-guess the agency's handling of
the initial investigation, which is not subject to the HVFRA, or to
secure a re-examination or redetermination of whether the results of an
HVFRA case file review warrant reinvestigation. On the latter point,
nothing in the HVFRA suggests that the personnel responsible for the
complaint and disciplinary process must be empowered to redetermine the
matter and potentially override the judgment of the responsible agents
who carried out the case file review and decided whether to conduct a
reinvestigation. Rather, the HVFRA entitles a qualifying applicant to
one case file review, and provides that the agency is not required to
do another for five years, absent newly discovered and materially
significant evidence. HVFRA 6. Section 95.9(b)(4) would make these
points clear.
Section 95.9(b)(4) would also specify that the agency's complaint
procedure is not available to entertain complaints about personnel of
other agencies, whose conduct is properly the responsibility of their
employing agencies.
Section 95.9(b)(5) would make the agency head or a designee the
final arbiter of the complaint, and preclude judicial review, following
section 8(b)(5) of the Act.
Section 95.9(b)(6) would provide that officers or employees of the
agency who have failed to comply with the Act may be required to
undergo retraining or additional training, and it would carry out the
requirement of section 8(b)(3) of the Act for disciplinary sanctions,
including potentially suspension or termination of employment, for
willful or wanton violations.
Section 95.9(b)(7) would provide that the complaint process
provisions do not authorize the agency to exercise authority over, take
disciplinary action against, or involve officers or employees of other
agencies. This reflects the normal division of authority and
responsibility among Federal agencies. For example, an Assistant U.S.
Attorney (``AUSA'') may have some involvement in an HVFRA case file
review or reinvestigation, such as being consulted on a legal question,
being asked to secure a warrant or subpoena, or being presented with
the results of a reinvestigation for a decision whether to prosecute.
As in other investigative contexts, that would not bring the
[[Page 6890]]
AUSA within the scope of the investigative agency's complaint processes
or subject the AUSA to any authority of the investigative agency.
J. Section 95.10--Data Collection
Section 95.10 would implement section 7 of the Act, which requires
the National Institute of Justice to publish annual statistics
regarding cold case murders. The proposed rule would provide that the
Attorney General may delegate this function to the Bureau of Justice
Statistics or another Justice Department component, which may be more
appropriate agencies to carry out this function. Delegating statutory
functions to other components is within the Attorney General's
authority under 28 U.S.C. 509, 510. The proposed rule would also
specify the relevant time frames and classes of cold case murders to be
covered in each annual publication of statistics.
K. Section 95.11--Annual Report
Section 95.11 would implement section 13 of the Act, which requires
each agency to submit annual reports to the House and Senate Judiciary
Committees describing actions taken and results achieved under the Act.
The proposed rule would specify that the reporting requirement applies
to agencies that may be the principal investigative agencies in the
investigation of murders, because the rule assigns responsibility for
carrying out the Act to those agencies, and other agencies would have
nothing to report. The proposed rule further would provide that an
agency need not submit a separate report if the required information
with respect to the agency is included in a report submitted by another
organizational unit of the Government. For example, a Department may
wish to submit consolidated annual reports providing the required
information for all of its investigative agencies. The latter approach
may be more consistent with the Department's general procedures in
dealing with Congress and more useful to the Committees than separate
reports from individual agencies.
L. Section 95.12--Withholding Information
Section 95.12, tracking section 9 of the Act, would make it clear
that the Act does not require an agency to disclose information that
would endanger the safety of any person, unreasonably impede an ongoing
investigation, violate a court order, or violate legal obligations
regarding privacy.
V. Regulatory Requirements
A. Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities for the purposes of
that Act because the regulation only concerns the review and
reinvestigation of cold case murders by Federal investigative agencies.
B. Executive Orders 12866, 13563, and 14094--Regulatory Review
The Office of Management and Budget has determined that this
rulemaking is a ``significant regulatory action'' under section 3(f) of
Executive Order 12866, 58 FR 51735, 51738 (Oct. 4, 1993), but it is not
a section 3(f)(1) significant action. Accordingly, this proposed rule
has been submitted to the Office of Management and Budget (``OMB'') for
review. This proposed rule has been drafted and reviewed in accordance
with section 1(b) of Executive Order 12866, Executive Order 13563, 76
FR 3821 (Jan. 21, 2011), and Executive Order 14094, 88 FR 21879 (Apr.
11, 2023).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity). 58 FR
51735-36; 76 FR 3821. Executive Order 13563 emphasizes the importance
of using the best available methods to quantify costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. 76 FR
3822.
The costs and benefits of this rulemaking, which implements the
HVFRA's requirements, are attributable to the HVFRA itself. The costs
include the work required in processing applications, carrying out case
file reviews, and reinvestigating cold case murders as warranted, in
conformity with the HVFRA. The benefits include solving cold case
murders where the HVFRA process is successful and providing closure for
the victims' families. No alternative regulatory approach would
significantly reduce these costs while achieving the benefits
constituting the legislative objective with similar effectiveness.
C. Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as outlined by Executive Order 13132, 64
FR 43255 (Aug. 10, 1999). The regulation only concerns the review and
reinvestigation of cold case murders by Federal investigative agencies.
D. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
The Department of Justice and the Department of the Interior, in
accordance with section 5(b) of Executive Order 13175, 65 FR 67249
(Nov. 9, 2000), will consult with Tribal officials regarding this
proposed regulation.
E. Executive Order 12988--Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, 61 FR 4729, 4731
(Feb. 7, 1996), to specify provisions in clear language. Pursuant to
section 3(b)(1)(I) of the Executive Order, nothing in this proposed
rule is intended to create any legal or procedural rights enforceable
against the United States.
F. Unfunded Mandates Reform Act of 1995
This rule when finalized will not result in the expenditure by
State, local and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (as adjusted for inflation) in
any one year and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995. The rule only
concerns the review and reinvestigation of cold case murders by Federal
investigative agencies.
G. Congressional Review Act
This rule is not a ``major rule'' as defined by the Congressional
Review Act, 5 U.S.C. 804(2).
List of Subjects in 28 CFR Part 95
Crime, Law enforcement.
Authority and Issuance
Accordingly, for the reasons stated in the preamble, the Department
of Justice proposes to add 28 CFR part 95 to read as follows:
PART 95--HOMICIDE VICTIMS' FAMILIES' RIGHTS
Sec.
[[Page 6891]]
95.1 Purpose.
95.2 Definitions.
95.3 Case file review.
95.4 Review procedures.
95.5 Full reinvestigation.
95.6 Multiple agencies.
95.7 Consultation, updates, and explanation.
95.8 Subsequent reviews.
95.9 Procedures to promote compliance.
95.10 Data collection.
95.11 Annual report.
95.12 Withholding information.
Authority: Pub. L. 117-164, 136 Stat. 1358.
Sec. 95.1 Purpose.
The purpose of this part is to implement the Homicide Victims'
Families' Rights Act of 2021 (the ``Act''). The Act provides for a
system to review the case files of cold case murders at the instance of
certain persons and potentially carry out further investigation.
Sec. 95.2 Definitions.
In this part:
(a) The term ``designated person'' means a parent, step-parent,
parent-in-law, grandparent, grandparent-in-law, sibling, spouse, child,
or step-child of a murder victim.
(b) The term ``victim'' means a natural person who died as a result
of a cold case murder.
(c)(1) The term ``murder'' means an offense under 18 U.S.C. 1111,
or another Federal offense that incorporates by reference the elements
of 18 U.S.C. 1111. The offenses that incorporate by reference the
elements of 18 U.S.C. 1111 are--
(i) A murder committed in Indian country, investigated as a crime
potentially prosecutable under 18 U.S.C. 1152 or 1153;
(ii) A murder in which the victim was a Federal officer or
employee, or another person whose status or activities would make the
person's murder a Federal crime, investigated as a crime potentially
prosecutable under 18 U.S.C. 115, 351, 1114, 1116, 1121, 1503, 1512,
1513, 1751, or 1841; 7 U.S.C. 2146; 15 U.S.C. 1825; or 21 U.S.C. 461,
675, or 1041;
(iii) A murder in which the victim was a United States national
killed outside of the United States, investigated as a crime
potentially prosecutable under 18 U.S.C. 1119 or 2332; and
(iv) A murder in which the status or activities of the perpetrator,
or the means or circumstances of the murder's commission, would make
the murder a Federal crime, investigated as a crime potentially
prosecutable under 18 U.S.C. 36, 924(j), 930, 1118, 1120, 1652, 1958,
1959, 2245, 3261, or 3273; or 49 U.S.C. 46506.
(2) The term ``murder'' does not include--
(i) A murder in which the victim died before January 1, 1970;
(ii) A murder that is not an offense under the laws of the United
States, even if it is an offense under the laws of a State, the
District of Columbia, or a territory or possession of the United
States; or
(iii) Any offense, conduct, or occurrence that did not involve the
commission of a murder as defined in paragraph (c)(1) of this section.
(d) The term ``agency'' means a Federal law enforcement entity with
jurisdiction to engage in the detection, investigation, or prosecution
of a cold case murder. The term ``agency'' does not include a State or
local law enforcement entity or a law enforcement entity of the
District of Columbia or a territory or possession of the United States.
(e) The term ``principal investigative agency'' means the Federal
investigative agency that had the primary responsibility for the
initial investigation of a murder. In a case in which a murder was
investigated by State or other non-Federal authorities and the role of
Federal agencies was the provision of investigative assistance, and in
a case in which a murder was investigated by a Federal agency but
thereafter State or other non-Federal authorities assumed the primary
responsibility for the investigation, no Federal agency was the
principal investigative agency and the case is not within the scope of
this part. A prosecutorial agency of the Department of Justice, though
involved in the investigation of a murder, is not the principal
investigative agency in any case.
(f) The term ``initial investigation'' means the investigation of a
murder before it became a cold case murder.
(g) The term ``cold case murder'' means a murder--
(1) In which the victim died more than three years prior to the
date of an application by a designated person under Sec. 95.3;
(2) Previously investigated by a Federal law enforcement entity;
(3) For which all probative leads have been exhausted; and
(4) For which no likely perpetrator has been identified.
(h) The term ``probative leads'' means information that identifies
the perpetrator or that provides a sufficient likelihood of enabling
the identification of the perpetrator to warrant further investigation,
in the agency's judgment and consistent with the agency's policies and
practices regarding the use of investigative methods. Variant
terminology used in some provisions of the Act, ``probative
investigative leads,'' has the same meaning.
Sec. 95.3 Case file review.
(a) In general. Upon written application by one designated person,
the principal investigative agency shall review the case file regarding
a cold case murder to determine if a full reinvestigation would result
in probative leads.
(b) Review. A review under paragraph (a) of this section shall
include the following elements:
(1) An analysis of what investigative steps or follow-up steps may
have been missed in the initial investigation. This element requires
the reviewer to consider whether, in the reviewer's judgment, there
were steps or follow-up steps that should have been taken in the
original investigation but were not taken.
(2) An assessment of whether witnesses should be interviewed or
reinterviewed. This element requires the reviewer to consider whether,
in the reviewer's judgment, there were witnesses in the original
investigation who should have been interviewed but were not
interviewed, or who should have been asked additional questions or
interviewed in a different manner than in the original investigation.
(3) An examination of physical evidence to see if all appropriate
forensic testing and analysis was performed in the first instance or if
additional testing might produce information relevant to the
investigation. This element has two aspects. It requires the reviewer
to consider whether, in the reviewer's judgment, there was forensic
testing available at the time, such as checking for latent
fingerprints, which should have been carried out in the initial
investigation but was not carried out. It also requires the reviewer to
consider whether there have been advances in forensic technology or
methods, such as more sensitive DNA testing, which were unavailable at
the time of the initial investigation, but which would now be utilized
in a like investigation under current policies and practices regarding
the use of investigative methods.
(4) An update of the case file using the most current investigative
standards as of the date of the review to the extent it would help
develop probative leads. This element requires the reviewer to consider
whether additional or potentially more effective investigative measures
would have been taken in the
[[Page 6892]]
initial investigation had current investigative standards been in
effect. For example, two Executive Orders, E.O. 14053 and E.O. 13898,
have been issued, in 2021 and 2019 respectively, to enhance and
prioritize the investigation of cases involving missing or murdered
indigenous persons. This element requires the reviewer to consider in
such cases whether application of the current investigative standards
would help develop probative leads.
(5) If the reviewer is aware of another agency that investigated or
participated in the investigation of the murder, notification of the
other agency that the case is under review and consideration of any
information provided by the other agency.
(c) Reviewer. A review under paragraph (a) of this section shall
not be conducted by a person who previously investigated the murder at
issue. This does not limit the reviewer in seeking information from or
consulting with a person who conducted or was involved in the initial
investigation.
(d) Acknowledgment. The agency shall provide in writing to the
applicant, as soon as reasonably possible, confirmation of the agency's
receipt of the application and notice of the applicant's rights under
the Act.
(e) Certification in lieu of review. The application for a case
file review may be denied if the case does not satisfy the criteria for
a cold case murder as defined in Sec. 95.2(g). If a case file review
is denied on this ground, the agency shall issue a written
certification that the case does not satisfy the criteria for a cold
case murder and shall inform the applicant of the reason for the
denial.
Sec. 95.4 Review procedures.
(a) Application form. Each agency that may be the principal
investigative agency in a cold case murder investigation shall develop
a written application form to be used for designated persons to request
a case file review. An agency may adopt for this purpose a standard
form developed by the government, or by another organizational unit of
the government, and need not separately develop an agency-specific
form.
(b) Responsible agency. An application for a case file review may
be denied if it is submitted to an agency that did not previously
investigate the murder or was not the principal investigative agency in
the initial investigation of the murder. If a case file review is
denied on this ground, the agency shall inform the applicant of the
reason for the denial. If the agency is aware of another Federal agency
that was the principal investigative agency in the initial
investigation, the agency shall so advise the applicant and shall, if
the applicant wishes, transfer the application to the principal
investigative agency. If no Federal agency was the principal
investigative agency in the initial investigation, but the agency knows
the identity of a non-Federal entity that investigated the murder, the
agency shall so advise the applicant.
(c) Multiple agencies or applications. (1) If more than one agency
participated in the investigation of a murder, the agencies shall
coordinate any case file review or full reinvestigation so that there
is only one joint case file review or full reinvestigation at any one
time. An application for review shall not be denied based on
disagreement among agencies as to which agency was the principal
investigative agency in the initial investigation. In such a case, the
relevant agencies shall jointly consider the application and
collaborate in carrying out any resulting case file review or
reinvestigation, or responsibility for those functions may be assumed
by or assigned to one of the agencies involved.
(2) An agency need not take any action based on an application by a
designated person during the pendency of an application by another
designated person with respect to the same victim, or during the
pendency of a resulting case file review or reinvestigation, but the
agency shall advise the applicant that there was an earlier application
and may consider any information provided by the later applicant.
(3) Only one case file review shall be undertaken at any one time
with respect to the same cold case murder victim. If an agency receives
multiple applications with respect to different victims, it may
consolidate any resulting case file reviews.
(d) Time limit. An agency shall complete a case file review and
decide whether a full reinvestigation is warranted not later than six
months after the receipt by the agency of the application resulting in
the review. The agency may extend this time limit once for a period not
exceeding six months if the agency finds that the number of case files
to be reviewed makes it impracticable to comply with the time limit
without unreasonably taking resources from other law enforcement
activities. If the time limit is extended, the agency shall notify and
explain its reasoning to the applicant.
Sec. 95.5 Full reinvestigation.
(a) In general. An agency shall conduct a full reinvestigation of a
cold case murder if review of the case file concludes that a full
reinvestigation would result in probative leads. As provided in the
definition of ``probative leads'' in Sec. 95.2(h), this means that a
full reinvestigation is required if the case file review produces
information that identifies the perpetrator or that provides a
sufficient likelihood of enabling the identification of the perpetrator
to warrant further investigation, in the agency's judgment and
consistent with the agency's policies and practices regarding the use
of investigative methods.
(b) Full reinvestigation. A full reinvestigation for purposes of
the Act means an investigation in which all new probative leads are
exhausted. A full reinvestigation--
(1) Shall include analyzing all evidence regarding the murder for
the purpose of developing probative leads; but
(2) Need not involve pursuing leads that do not, in the agency's
judgment, provide a sufficient likelihood of enabling the
identification of the perpetrator to warrant further investigation, or
whose pursuit is not consistent with the agency's policies and
practices regarding the use of investigative methods.
(c) Person conducting reinvestigation. A reinvestigation shall not
be conducted by a person who previously investigated the murder. This
prohibition does not limit consulting with or obtaining information
from a person involved in the previous investigation, or using such a
person in a subordinate role in the reinvestigation.
(d) Unified reinvestigation. Only one full reinvestigation shall be
undertaken at any one time with respect to the same cold case murder
victim. If reinvestigation is found to be warranted with respect to
multiple victims, the resulting reinvestigations may be consolidated.
Sec. 95.6 Multiple agencies.
If more than one agency conducted the initial investigation of a
cold case murder, each agency shall coordinate with the other agency or
agencies any case file review or full reinvestigation so that there is
only one case file review or full reinvestigation occurring at a time,
as provided in Sec. Sec. 95.4(c) and 95.5(d).
Sec. 95.7 Consultation, updates, and explanation.
(a) Consultation. The agency shall consult with the designated
person who filed an application for case file review. This means
discussing the application with the applicant on at least one occasion.
[[Page 6893]]
(b) Updates. The agency shall provide the applicant with periodic
updates during any case file review or full reinvestigation. The
required update shall include informing the applicant whether the
review or reinvestigation is in progress or has been completed.
(c) Explanation of decision. At the conclusion of a case file
review, the agency shall meet with the applicant and discuss the
evidence to explain the decision whether or not to engage in a full
reinvestigation. Discussion of the evidence and explanation of the
decision do not require disclosure of information described in Sec.
95.12 or other information that would not generally be shared with a
victim's family members in the investigation of a murder.
(d) Means of communication. Meetings required under this section
may be carried out in person or through remote video communication.
Consultations and updates may be carried out in person or through any
other means of communication.
Sec. 95.8 Subsequent reviews.
(a) In general. If an agency concludes following a case file review
that a full reinvestigation is not warranted, or if a full
reinvestigation is undertaken and completed without identifying a
likely perpetrator, no additional case file review or reinvestigation
is required to be undertaken with respect to a cold case murder for a
period of five years, unless there is newly discovered, materially
significant evidence.
(b) New material evidence. For purposes of the Act, newly
discovered, materially significant evidence means evidence discovered
subsequent to the previous case file review or reinvestigation that
identifies the perpetrator or that provides a sufficient likelihood of
enabling the identification of the perpetrator to warrant further
investigation, in the agency's judgment and consistent with the
agency's policies and practices regarding the use of investigative
methods.
(c) Discretionary authority. An agency may, in its discretion,
review case files, continue investigation, or reinvestigate
notwithstanding the absence of an application by a designated person or
the time when previous review, investigation, or reinvestigation
occurred.
Sec. 95.9 Procedures to promote compliance.
(a) In general--(1) Regulations. The Act provides that, not later
than August 3, 2023, each agency shall promulgate regulations to
enforce the right of a designated person to request a review under the
Act and to ensure compliance by the agency with the obligations
described in the Act. This requirement applies to any agency that may
be the principal investigative agency in a murder investigation. An
agency is not required to separately promulgate regulations to the
extent it adopts, or is subject to, regulations issued by another
organizational unit of the government regarding the matters described
in this section.
(2) Content of regulations. The Act provides that the regulations
promulgated under paragraph (a)(1) of this section shall--
(i) Designate an administrative authority within the agency to
receive and investigate complaints relating to case file reviews and
reinvestigations and provide a procedure for the resolution of such
complaints;
(ii) Require a course of training for appropriate employees and
officers within the agency regarding the procedures, responsibilities,
and obligations under the Act;
(iii) Contain disciplinary sanctions, which may include suspension
or termination from employment, for employees of the agency who have
willfully or wantonly failed to comply with the Act; and
(iv) Provide that the head of the agency, or a designee, shall be
the final arbiter of the complaint, and that there shall be no judicial
review of the final decision of the head of the agency or designee by a
complainant.
(3) Agency. For purposes of paragraphs (a)(1) and (2) of this
section, the ``agency'' may be a broader organizational unit of the
government in which the principal investigative agency is situated.
(b) Department of Justice. The following shall apply to each agency
of the Department of Justice that may be the principal investigative
agency in a cold case murder investigation:
(1) The agency shall require a course of training regarding the
procedures, responsibilities, and obligations required under the Act
for agency officers and employees whose involvement in carrying out the
Act warrants such training.
(2) The agency shall designate an official within the agency to
receive and investigate complaints alleging that the agency engaged in
a violation of the Act relating to case file review or reinvestigation
of a cold case murder. If investigation of a complaint by the official
could create a conflict of interest, the official shall notify the
appropriate individual or office within the agency and investigation of
the complaint may be assigned to a different official.
(3) A complaint under this subsection must be submitted in writing
by a person who applied for case file review under Sec. 95.3(a). The
complaint must be submitted within one year of the complainant's
knowledge of a violation or receipt of information from the agency
indicating completion of a case file review or reinvestigation, but if
no such information has been received from the agency, then within five
years of the submission of the application for case file review. A
complaint submitted outside these time frames must include an
explanation for why it was not timely submitted, which will be
considered in deciding whether to accept the application. The complaint
shall contain, to the extent known to, or reasonably available to, that
person, the following information:
(i) The name and contact information of the complainant.
(ii) The investigative case number or name of the murder victim.
(iii) Any tracking number or other identifier of the complainant's
application for case file review under Sec. 95.3(a).
(iv) If the complaint pertains to a specific officer or employee of
the agency, that person's name and contact information, or other
identifying information if the complainant is not able to provide name
and contact information.
(v) Information about the alleged violation of the Act sufficient
to enable the agency official to conduct an investigation including:
the nature of the violation; when and how it occurred; whether, when,
and how the complainant notified an agency officer or employee of the
alleged violation; and any actions taken by an agency officer or
employee in response to such notification.
(4) The agency official shall investigate a complaint that
satisfies the conditions set forth in paragraph (b)(3) of this section,
determine whether further action is warranted, document and close the
investigation of the complaint in conformity with agency procedures,
and inform the complainant about the disposition of the complaint.
However, the complaint procedure under this subsection is not available
to present complaints about the conduct of the initial investigation,
to present complaints about the conduct of an officer or employee of
another agency, or to secure a reexamination or redetermination of the
agency's decision whether a reinvestigation is warranted under the Act.
(5) The head of the agency or a designee shall be the final arbiter
of the
[[Page 6894]]
complaint and there shall be no judicial review of that person's final
decision.
(6) An officer or employee of the agency who has failed to comply
with the Act may be required to undergo retraining or additional
training. All disciplinary actions authorized by the agency or the
Department of Justice may be taken, as appropriate, including
suspension or termination from employment, for officers or employees of
the agency who are determined to have willfully or wantonly failed to
comply with the Act.
(7) The provisions of paragraph (b) of this section do not
authorize the agency to exercise authority over, take disciplinary
action against, or involve in its complaint or disciplinary processes,
an officer or employee of another agency.
Sec. 95.10 Data collection.
(a) Publication of statistics. Not later than August 3, 2025, and
annually thereafter, the National Institute of Justice shall publish
statistics on the number of cold case murders. The Attorney General may
delegate this function to the Bureau of Justice Statistics or another
component of the Department of Justice.
(b) Content of published statistics. The statistics published
pursuant to paragraph (a) of this section shall, at a minimum, be
disaggregated by the circumstances of the cold case murder, including
the classification of the offense, and by agency.
(c) Annual publications. The statistics published in each year
shall provide the required information for--
(i) Cold case murders in which the murder occurred after the
enactment of the Act and no likely perpetrator was identified by the
end of the preceding year; and
(ii) Cold case murders in which an application for review under
Sec. 95.3(a) was filed before the end of the preceding year and no
likely perpetrator was identified by the end of that year.
Sec. 95.11 Annual report.
(a) In general. The Act provides that each agency shall submit an
annual report to the Committees on the Judiciary of the House of
Representatives and of the Senate describing actions taken and results
achieved under this Act during the previous year. This requirement
applies to any agency that may be the principal investigative agency in
a murder investigation. An individual agency need not submit a separate
report if the required information with respect to the agency is
included in a report submitted to the Committees by another
organizational unit of the government.
(b) Contents of report. The Act provides that the report described
in paragraph (a) of this section shall include--
(1) The number of written applications filed with the agency
pursuant to section 2(a) of the Act and Sec. 95.3(a);
(2) The number of extensions granted, and an explanation of reasons
provided under section 2(h) of the Act and Sec. 95.4(d);
(3) The number of full reinvestigations initiated and closed
pursuant to section 4 of the Act and Sec. 95.5; and
(4) Statistics and individualized information on topics that
include identified suspects, arrests, charges, and convictions for
reviews under section 2 of the Act and Sec. 95.3 and reinvestigations
under section 4 of the Act and Sec. 95.5.
Sec. 95.12 Withholding information.
Nothing in the Act or this part requires an agency to provide
information that would endanger the safety of any person, unreasonably
impede an ongoing investigation, violate a court order, or violate
legal obligations regarding privacy.
Dated: January 13, 2025.
Merrick B. Garland,
Attorney General.
[FR Doc. 2025-01159 Filed 1-16-25; 8:45 am]
BILLING CODE 4410-18-P
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</html>Indexed from Federal Register on January 21, 2025.
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