that disclosure is authorized to "the defendant or the defendant's attorney." It does not take a great deal of imagination to
foresee problems arising from telling criminal defendants where the victims who will testify against them live. In fairness to the
Advisory Committee, it was only tracking language used elsewhere in Rule 12. 202 All of Rule 12 should be redrafted to
require disclosure only to defense counsel, rather than to the defendant personally. 203
192
88 F.3d 704, 710 (9th Cir. 1996).
193
Id. at 708 (internal quotation marks omitted).
194
Id. at 709.
195
Id. at 710.
196
834 F.2d 1277, 1281 (6th Cir. 1987)
197
Id. at 1282.
198
Id.
199
920 F.2d 1308, 1314 (7th Cir. 1990).
200
88 F.3d at 710.
201
18 U.S.C. § 3771(a)(1) (2006).
202
See, e.g., Fed. R. Crim. P. 12(a)(3).
203
Of course, if the defendant were acting pro se, then he would be counsel in the matter. See Faretta v. California, 422 U.S. 806 (1975).
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2007 Utah L. Rev. 861, *897
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This may be a convenient place to highlight another defect in the Advisory Committee's proposal - crime victims have no right
to be heard on whether their address should be given to the defendant. As discussed shortly, 204 I had originally proposed
allowing victims to be heard "on any matter directly affecting a victim's right" - for example, whether disclosing a victim's
home address violates the victim's right to reasonable protection. The Advisory Committee waters down that proposal,
recommending only that the victim must "be reasonably heard at any public proceeding in the district court concerning release,
plea, or sentencing involving the crime." 205 Under the Advisory Committee's formulation, therefore, crime victims would
seem to have no right to be heard on disclosure of their address. This is not a matter concerning "release, plea, or sentencing"
and, in many cases, this issue will be decided by written pleadings rather than in a "public proceeding." Nothing better
illustrates the unfairness of the Advisory Committee's proposals and their illegality under the CVRA than its refusal to
guarantee that crime victims will be heard on the subject of whether their home address will be turned over to the defendants
accused of victimizing them.
Compounding all these problems is one more: The Advisory Committee appears to encourage the use of crime victim
depositions or other face-to-face meetings between victims and defendants. In its proposed note to the amended rule, the
Advisory Committee describes as one possible procedure for dealing with a defense request for a victim's home address that
"the court might authorize the defendant and his counsel to meet with the victim in a manner and place designated by the court,
rather than giving the defendant the name and address of victim." 206 This note raises a host of problems. Most importantly, a
federal court lacks jurisdiction to require a crime victim to appear at a face-to-face, pretrial [*898] meeting with the defendant.
The "federal courts are courts of limited jurisdiction," 207 and federal judges have no general power to compel private citizens
to meet with defendants before a trial. 208 Moreover, the Advisory Committee seems to envision that such orders could issue
without the victim even being heard on the subject, a deprivation of liberty without due process of law. 209
Even if the court had authority and had considered a victim's arguments, a face-to-face meeting with the defendant raises other
problems. Such a meeting is a deposition in all but name. Yet Rule 15 provides stringent limits on the circumstances in which a
defendant can depose a victim. In particular, any deposition is limited to "exceptional circumstances" and a deposition for
discovery purposes is not permitted. 210 The Advisory Committee Note suggesting a meeting between a victim and a defendant
does an end run around these limitations. 211
In light of all these concerns, the best approach is simply to strike the existing requirement that a victim's address and phone
number be turned over as part of an alibi defense, as I proposed. It should also be noted that this proposal raises no due process
concerns that might stem from a one-sided reciprocal discovery rule. My proposal applies even handedly to both prosecution
and the defense. Neither side is required to disclose the address or telephone number of a victim, thus complying with the
Supreme Court's instruction that "in the absence of a strong showing of state interests to the contrary, discovery must be a two-
204
See infra notes 528-539 and accompanying text (discussing proposed Rule 60(a)(3)).
205
Proposed Amendments, supra note 71, R. 60, at 16.
206
Id. at 6.
207
Rasul v. Bush, 542 U.S. 466, 490 (2004) (quoting Kokkenen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
208
See, e.g., State ex rel. Beach v. Norblad, 781 P.2d 349, 350 (Or. 1989) (reversing trial court order requiring crime victim to allow defense
counsel to examine her home for evidence; victim "is under no obligation to obey an order that the defendant trial judge lacked authority to
issue"); State v. Gabrielson, 464 N.W.2d 434, 438 (Iowa 1990) (finding no constitutional, statutory, or other authority for trial court to order a
psychiatric examination of a sexual abuse victim).
209
See U.S. Const. amend. XIV.
210
2 Charles Alan Wright, Federal Practice and Procedure (Criminal) § 241, at 11 (2000 & Supp. 2006); see, e.g., In re United States, 878
F.2d 153, 157 (5th Cir. 1989).
211
Apparently in response to my arguments here, the Advisory Committee Note has been amended. See infra Afterword.
DAVID SCHOEN
2007 Utah L. Rev. 861, *898
Page 27 of 78
way street." 212 In any event, protecting victims from serious harm is certainly a strong state interest that would justify any
incidental effect on defense preparations for trial.
Finally, however one ends up on the proper formulation of the address issue under Rule 12.1 (governing alibi defenses), the
same formulation ought to be used in Rule 12.3 (governing public-authority defenses). Although I made this recommendation
in a previous article, 213 the Advisory Committee appears to have overlooked this parallel provision in need of amendment. So
that it is not overlooked again, I will set out the proposal in full. Tracking my recommendations for Rule 12.1, I recommended
a parallel amendment to Rule 12.3 as follows:
[*899]
Rule 12.3 Notice of a Public-Authority Defense
… .
(4) Disclosing Witnesses.
(A) Government's Request. An attorney for the government may request in writing that the defendant disclose the name,
address, and telephone number of each witness and the address and telephone number of each witness (other than the victim)
the defendant intends to rely on to establish a public-authority defense. An attorney for the government may serve the request
when the government serves its response to the defendant's notice under Rule 12.3(a)(3), or later, but must serve the request no
later than 20 days before trial.
(B) Defendant's Response. Within 7 days after receiving the government's request, the defendant must serve on an attorney for
the government a written statement of the name, address and telephone number of each witness. and the address and telephone
number of each witness (other than the victim).
(C) Government's Reply. Within 7 days after receiving the defendant's statement, an attorney for the government must serve on
the defendant or the defendant's attorney a written statement of the name, address, and telephone number of each witness, and
the address and telephone number of each witness (other than the victim), the government intends to rely on to oppose the
defendant's public-authority defense.
(b) Continuing Duty to Disclose. Both an attorney for the government and the defendant must promptly disclose in writing to
the other party the name, address, and telephone number of any additional witness and the address and telephone number of
each witness (other than the victim) if:
(1) the disclosing party learns of the witness before or during trial; and
(2) the witness should have been disclosed under Rule 12.3(a)(4) if the disclosing party had known of the witness earlier. 214
[*900] Rule 15 - Victims' Right to Attend Pre-Trial Depositions The Proposals:
I proposed amending Rule 15 to allow victims to attend any public depositions as follows:
(i) Victims Can Attend. Victims can attend any public deposition taken under this rule under the same conditions as govern a
victim's attendance at trial. 215
212
Wardius v. Oregon, 412 U.S. 470, 475 (1973).
213
Cassell, Proposed Amendments, supra note 4, at 873.
214
Apparently in response to my argument, the Advisory Committee has just proposed an amendment to Rule 12.3 paralleling its
amendment to Rule 12.1. See infra notes 585-587 and accompanying text.
215
Cassell, Proposed Amendments, supra note 4, at 874.
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2007 Utah L. Rev. 861, *900
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The Advisory Committee did not propose any change to Rule 15. 216
Discussion:
Rule 15 authorizes depositions for the purpose of preserving evidence for trial, 217 thus, such depositions are an extension of
the trial. Victims, accordingly, have the right to attend such proceedings, if they are public, 218 under the same conditions
governing their attendance at trial. To avoid any confusion over this issue, the proposed rule change directly states that fact.
The Advisory Committee declined to adopt this recommendation, concluding that depositions "do not fall within the CVRA,
which refers only to the victim's right not to be excluded from "public court proceedings.'" 219 But here, again, the Committee
has taken too narrow a view of the CVRA. It is simply unfair to victims to exclude them from a deposition in a criminal case -
and, thus, a violation of the CVRA's command that victims be treated with fairness.
The simplest proof of this conclusion is to consider the rights of criminal defendants at depositions. Rule 15 directly guarantees
criminal defendants a right to attend a deposition. 220 Originally the rule was silent on a defendant's presence, but in the 1975
enactment of the rule, 221 a defendant was guaranteed the right to attend. 222 Presumably, a major reason the Advisory
Committee added this language [*901] was to ensure fairness to defendants. 223 Indeed, after an indictment, "Rule 15
depositions might constitute a "critical stage' in a prosecution - requiring the presence of counsel - because of the potential
consequences of such depositions at trial." 224 Just as the Advisory Committee acted in 1975 to ensure defendants were treated
fairly at criminal depositions, it should now do the same for victims.
Victims also deserve the right to attend pretrial depositions because they are now participants in the criminal justice process. As
the Fifth Circuit explained in reversing a trial court which had allowed an ex parte deposition, "depositions are never ordered
where one party to the suit can be present, ask the questions, and hear the answers, and the opposing party in the case is not
only prevented from being present and asking questions, but is also denied even the opportunity to know what the questions
and answers are." 225 The Fifth Circuit further noted that "such a procedure is not only wholly unauthorized, it is contrary to
the most basic presuppositions of our adversary system of litigation." 226 Because a crime victim is now "an independent
216
Proposed Amendments, supra note 71.
217
See, e.g., United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1994).
218
Cf. United States v. L.M., 425 F. Supp. 2d 948, 957 (N.D. Iowa 2006) (finding juvenile proceedings to be covered by the CVRA only
insofar as they are public court proceedings).
219
CVRA Subcommittee Memo, supra note 66, at 17 (emphasis in original) (quoting 18 U.S.C. § 3771(a)(3)(2006)).
220
Fed. R. Crim. P. 15(d)(1)-(2).
221
The Advisory Committee recommended various changes to the rule in 1974, which Congress modified somewhat in 1975. See Wright,
supra note 210, § 241, at 7-8. The changes discussed in this Article were initiated by the Advisory Committee.
222
Wright, supra note 210, § 244, at 37.
223
Part of the rationale may have also been to facilitate admission of the deposition testimony at trial, as a defendant has a right to confront
adverse witnesses at trial. But the Confrontation Clause does not always guarantee defendants a right to attend a deposition, see, for example,
United States v. Salim, 855 F.2d 944, 955 (2d Cir. 1988), so the defendant's right to attend the deposition must rest on a broader justification
than implementing constitutional requirements.
224
United States v. Hayes, 231 F.3d 663, 674 (9th Cir. 2000).
225
In re United States, 878 F.2d 153, 157 (5th Cir. 1989) (emphasis in original).
226
Id.
DAVID SCHOEN
2007 Utah L. Rev. 861, *901
Page 29 of 78
participant in the proceedings," 227 the same considerations demand that victims be able to attend a pretrial deposition. To be
sure, crime victims (like other members of the public) will have the opportunity to hear deposition testimony when it is
introduced at trial. 228 But that may be a pale substitute for actually observing a witness testify in person. 229 Victims may
also be able to facilitate the truth-seeking process by watching witnesses at the deposition and alerting prosecutors or defense
attorneys to any false statements that are being made. 230 Rule 15 should, therefore, be amended to ensure that crime victims
have a right to attend any deposition.
Rule 17 - Victims' Right to Notice of Subpoena of Confidential Information
The Proposals:
I recommended amending Rule 17 to ensure that subpoenas to third parties seeking personal and confidential information about
crime victims would not be [*902] abused. Initially, I proposed requiring a court determination of relevance at trial and notice
to a victim as follows:
Rule 17(h)(2) - Victim Information. After indictment, no record or document containing personal or confidential information
about a victim may be subpoenaed without a finding by the court that the information is relevant to trial and that compliance
appears to be reasonable. If the court makes such a finding, notice shall then be given to the victim, through the attorney for the
government or for the victim, before the subpoena is served. On motion made promptly by the victim, the court may quash or
modify the subpoena if compliance would be unreasonable or oppressive. 231
The Advisory Committee proposed more limited protections for such information as follows:
Rule 17(c)(3) - Subpoena for Personal or Confidential Information About Victim. After a complaint, indictment, or information
is filed, a subpoena requiring the production of personal or confidential information about a victim may not be served on a third
party without a court order, which may be granted ex parte. Before entering the order, the court may require that notice be
given to the victim so that the victim has an opportunity to move to quash or modify the subpoena. 232
The Advisory Committee also proposed the following note to accompany the rule change:
Subdivision(c)(3). This amendment implements the Crime Victims' Rights Act, codified at 18 U.S.C. § 3771(a)(8), which
states that victims have a right to respect for their "dignity and privacy." The rule provides a protective mechanism when the
defense subpoenas a third party to provide personal or confidential information about a victim. Third party subpoenas raise
special concerns because a third party may not assert the victim's interests, and the victim may be unaware of the subpoena.
Accordingly, the amendment requires judicial approval before service of a subpoena seeking personal or confidential
information about a victim from a third party. The amendment also provides a mechanism for notifying the victim, and makes
it clear that a victim may move to quash or modify the subpoena under Rule 17(c)(2) on the grounds that it is unreasonable or
oppressive.
The amendment applies only to subpoenas served after a complaint, indictment, or information has been filed. It has no
application to grand [*903] jury subpoenas. When the grand jury seeks the production of personal or confidential information,
grand jury secrecy affords substantial protection for the victim's privacy and dignity interests.
227
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
228
See United States v. McDougal, 103 F.3d 651, 659 (8th Cir. 1996).
229
See generally Douglas E. Beloof & Paul G. Cassell, The Victim's Right to Attend the Trial: The Reascendant National Consensus, 9
Lewis & Clark L. Rev. 481, 534-38 (2005) (discussing reasons victims need to hear testimony in person).
230
See id. at 544-45 (advancing this argument about victims attending trials).
231
Cassell, Proposed Amendments, supra note 4, at 875.
232
Proposed Amendments, supra note 71, R. 17(c)(3), at 7.
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2007 Utah L. Rev. 861, *903
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The amendment seeks to protect the interests of the victim without unfair prejudice to the defense. It permits the defense to
seek judicial approval of the subpoena ex parte, because requiring the defendant to make and support the request in an
adversarial setting may force premature disclosure of defense strategy to the government. The court may approve or reject the
subpoena ex parte, or it may provide notice to the victim, who may then move to quash. In exercising its discretion, the court
should consider the relevance of the subpoenaed material to the defense, whether giving notice would prejudice the defense,
and the degree to which the subpoenaed material implicates the privacy and dignity interests of the victim. 233
Having seen the Advisory Committee proposal and accompanying note, I am concerned that the limits on subpoenas found in
the United States Supreme Court's decision in United States v. Nixon 234 might be vitiated by a broad rule. To ensure courts
consistently apply Nixon's substantive and procedural standards to victim-related subpoenas, I am modifying my earlier
proposal to require a court determination of specificity, relevance, and admissibility at trial, as well as notice to the victim, as
follows (new language italicized):
Rule 17(c)(3) - Subpoena for Personal or Confidential Information About Victim. After a complaint, indictment, or information
is filed, no record or document containing personal or confidential information about a victim may be subpoenaed without a
finding by the court that the information is specifically described, relevant to and admissible at trial, and that compliance
appears to be reasonable. If the court makes such a tentative finding, notice shall then be given to the victim, through the
attorney for the government or for the victim, before the subpoena is served. On motion made promptly by the victim, the court
may quash or modify the subpoena if compliance would be unreasonable or oppressive and may ask the court to revisit any
tentative findings. A subpoena shall not be used for discovery purposes or to obtain information for impeachment at trial.
Discussion:
The issues involved in the Rule 17 amendments are complicated and very important. It is useful to divide the discussion into
three parts: (1) the problem the proposals address; (2) the procedural flaws in the Advisory Committee's proposal [*904]
allowing ex parte subpoenas; and (3) the general lack of authority for subpoenas seeking crime victim information.
(1) The Problem of Subpoenaing Confidential Victim Information
The existing rules governing subpoenas are flawed because they allow the parties to subpoena personal or confidential
information about a victim from third parties without the victim knowing. This issue was highlighted recently in the notorious
Utah state criminal proceedings involving the kidnapping of Elizabeth Smart. 235 Attorneys for Elizabeth's alleged kidnapper
subpoenaed class records from her high school (class and teacher lists, report cards, and disciplinary and attendance records)
and medical records from her hospital. 236 The school turned over the requested records without notice to the Smart family,
while the hospital refused to turn over the requested records. When Elizabeth's father learned that her school records had been
turned over to defense counsel, he filed a motion to have the records returned to the school. Prosecutors in the case also
objected that they were not given an opportunity to file a motion to quash prior to the production of the records. 237 The matter
is apparently still under review in the state courts.
The problem that occurred in the Smart case under the Utah state rules could occur under the federal rules, as the attorney for
Elizabeth Smart pointed out to the Advisory Committee in a letter. 238 The federal rules currently permit an objection from the
233
Id.
234
418 U.S. 683, 700-01 (1974).
235
See generally Ed Smart & Lois Smart with Laura Morton, Bringing Elizabeth Home: A Journey of Faith and Hope (2003) (discussing the
Smart Case).
236
Stephen Hunt, Defense Blasted for Obtaining Smart's School Records, Salt Lake Trib., Jan. 14, 2005, at B2.
237
Pat Reavy, Quash Smart Subpoenas, DA Says, Deseret Morning News, Feb. 1, 2005, at B3.
238
See Letter from Gregory G. Skordas, attorney for Elizabeth Smart, to Judge Susan Bucklew (May 23, 2005) (on file with author).
DAVID SCHOEN
2007 Utah L. Rev. 861, *904
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witness to whom the subpoena for documents or records is issued, 239 but there is no provision for notifying the interested
party (e.g., the victim) when personal or confidential information is subpoenaed from a third party.
A recent federal case illustrates the problem under the current rules. 240 In an assault case, defense counsel used Federal Rule
of Criminal Procedure 17(c) to obtain a subpoena for the victim's medical records held by the Veterans Administration. 241
The federal district judge approved the subpoena and issued an order, ex parte and under seal, directing the VA to provide
defense counsel with [*905] the records. 242 Defense counsel then obtained the records, all without knowledge of the
prosecutor or the victim. 243 These records included extraordinarily intimate information about the victim, including sensitive
medical conditions, medications, psychiatric counseling, and the like. 244 The matter came to the prosecutor's attention - and,
thus, the victim's attention - only because defense counsel "warned" the prosecutor, while attempting to negotiate a favorable
plea, that taking the case to trial would cause irreparable harm to the victim because, by the time the defense attorney got
finished with the victim, the victim would never trust a therapist again. 245 All this happened without any notice to the victim
and without any opportunity to present arguments against disclosure of this sensitive information. 246
Allowing such subpoenas to be delivered without notice to the victim violates the CVRA's provisions guaranteeing victims the
rights to be treated "with respect for the victim's dignity and privacy" as well as "with fairness." 247 With respect to the
protection for dignity and privacy, allowing subpoenas to go directly to third-party custodians of records could provide no
protection if the custodian is disinclined to protect the victim's privacy. Subpoenas without notice to victims also raise fairness
concerns, particularly if issues implicating the right of privacy are concerned. 248
(2) Procedural Problems with the Advisory Committee Approach
To ensure protection of crime victims' rights when subpoenas for confidential information are issued, it is necessary to change
the federal rules. I proposed an amendment to guarantee notice to crime victims as well as a court determination that the
information was relevant at trial before victims' personal and confidential information could be subpoenaed. The Advisory
Committee agreed that Rule 17 needed to be amended, but it proposed more limited protections for victims. The Committee
would require court approval before any subpoena issues to a third party seeking information about a victim. However, the
court would have discretion about whether to give the victim an opportunity to be heard on the subpoena; and there are no
substantive limits on the kinds of information that defendants can subpoena.
Turning first to the procedural problems with the Advisory Committee proposal, the Committee would remit the entire issue of
whether to issue a subpoena for personal or confidential information (and, indeed, whether to even tell a victim about such a
subpoena) to the discretion of the court. The only protection the Advisory Committee offers is the requirement of a court order
[*906] approving such a subpoena. The committee gives courts discretion to notify the victim or simply issue the subpoena ex
parte.
239
Fed. R. Crim. P. 17(c).
240
See E-mail from Rod Rosenstein, U.S. Attorney for the District of Maryland, to Russell Butler, Maryland Crime Victims' Resource
Center, Inc. (Jan. 3, 2007), reprinted in Testimony of Russell Butler to the Federal Criminal Rules Advisory Comm. App. A (Jan. 19, 2007),
available at http://www.uscourts.gov/rules/CR%20Comments%202006/06-CR-006.pdf.
241
Id.
242
Id.
243
Id.
244
Id.
245
Id.
246
Id.
247
18 U.S.C. § 3771(a)(8) (2006).
248
See infra notes 347-351 and accompanying text.
DAVID SCHOEN
2007 Utah L. Rev. 861, *906
Page 32 of 78
Subpoenas issued ex parte are plainly unfair to victims. When a victim's personal or confidential information is at stake, it is
truly hard to understand how anyone could argue that allowing it to be turned over to the defense without any opportunity to be
heard treats victims "fairly," as the CVRA requires.
The Advisory Committee does not clearly explain when a court should proceed ex parte and when it should follow the standard
practice of giving notice to the victim as the affected party. The only justification the Advisory Committee gives for the
extraordinary step of allowing ex parte procedures is to avoid forcing "premature disclosure of defense strategy to the
government." 249 But when a victim's confidential information is at stake, some interest in concealing "strategy" from the
opposing party can hardly be sufficient grounds for ex parte issuance of a subpoena. As the Supreme Court has bluntly
explained, our adversary system is not "a poker game in which players enjoy an absolute right always to conceal their cards
until played." 250
Allowing ex parte procedures violates basic principles of fairness. The American Bar Association raised this point quite
effectively in its comments to the Advisory Committee on Rule 17. 251 The ABA explained that Canon 3(B)(7) of the Model
Code of Judicial Conduct provides in pertinent part that "[a] judge shall accord to every person who has a legal interest in the
proceedings, or that person's lawyer, the right to be heard according to law." 252 Rule 17 would allow that precept to be
violated by denying some victims a chance to heard before compromising their legal rights to confidentiality in personal and
confidential information. Similarly, the ABA noted that its Model Code of Judicial Conduct generally forbids courts from
considering ex parte communications. 253 Rule 17, of course, flies in that face of that well-established prohibition. While the
Model Code of Judicial Conduct is not binding on federal courts, its principles have generally been viewed as instructive. 254
Defense attorneys would also be treading on ethical thin ice under proposed Rule 17. The Model Rules of Professional Conduct
and the ABA Criminal Justice Standards both provide that "in representing a client, a lawyer shall not … use methods of
obtaining evidence that violates the legal rights of … a [third] [*907] person." 255 When defense attorneys obtain ex parte
subpoenas for a victim's confidential information, they may very well violate the rights of the victim, such as the right to
confidentiality preserved in the doctor-patient privilege or psychotherapist privilege.
For reasons such as these, the federal rape shield rule (among other examples) properly requires defendants to always provide
notice to the court - and to the victim - before seeking to introduce evidence about a rape victim's prior sexual history. 256 The
rape shield rule does not create any exception for situations that might lead to disclosure of defense "strategy." Rule 17 should
follow the same approach and insure that victims always have an opportunity to contest disclosure of their personal and
confidential information in court.
Any defense interest in withholding strategy must give way to facially neutral rules. Both my proposed amendment and the
Advisory Committee's proposed amendment apply evenhandedly to both the prosecution and the defense. Thus, the
amendments are not designed to force disclosure of defense strategy, as they may also force disclosure of prosecution strategy
249
Proposed Amendments, supra note 71, R. 17, at 8 (emphasis added).
250
Williams v. Florida, 399 U.S. 78, 82 (1970) (citing William J. Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?,
1963 Wash. U. L.Q. 279, 292).
251
Letter from Robert M.A. Johnson, Chair, ABA Criminal Justice Section, to Hon. Peter G. McCabe, Sec'y of the Comm. on Rules of
Practice and Procedure (Feb. 1, 2007), available at www.uscourts.gov/rules/CR%20Comments%202006/06-CR-028.pdf.
252
Id. (citing Model Code of Jud. Conduct Canon 3(B)(7) (2004)).
253
Id.
254
See Debra Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J. 657, 678-79 (2005) (citing United States v. Will, 449 U.S. 200,
211-12 & n.12 (1980); Hanrahan v. Hampton, 446 U.S. 1301, 1301 (1980)).
255
Model R. Prof'l Conduct 4.4(a) (2007); see also ABA Criminal Justice Study, Standard 4-4.3 (1993).
256
See Fed. R. Evid. 412(c)(1)(B).
DAVID SCHOEN
2007 Utah L. Rev. 861, *907
Page 33 of 78
if it is the prosecution who subpoenas confidential victim information. Due process is satisfied as long as the prosecution and
the defense have reciprocal rights and courts apply the Rules consistently. 257
The objectionable feature of the Advisory Committee proposal is that the subpoena could be issued without notice to a crime
victim. A narrower issue is whether certain pleadings could be filed on this question on an ex parte basis. Such ex parte filing
might be appropriate, in the sense that once the court gives notice that it is considering whether to issue a subpoena, then the
defendant, the government, or, indeed, the victim might wish to file parts of their pleadings under seal for good cause shown.
Requests for such sealing could be handled in the ordinary course of litigation - once the victim knew that such litigation was
occurring.
Even if there is some tangential defense interest in conceding strategy, the Advisory Committee proposal addresses it in the
most haphazard way. Consider the Elizabeth Smart example mentioned earlier, in which the defense sent ex parte subpoenas to
Elizabeth's school and hospital. Under the Advisory Committee's proposal, a court could still decide to approve those
subpoenas ex parte to prevent disclosure of some secret defense "strategy." But once the school and the hospital received the
subpoenas, nothing would bar them from revealing the subpoenas' existence to the victim - and, indeed, the world. Thus, the
interest the Advisory Committee purports to protect (concealing defense trial strategy) would actually be [*908] protected
only when the third party, for whatever reason, chose not reveal the subpoena. In the Smart case, for instance, the school did
not reveal the defense "strategy" 258 because it simply handed the materials over to the defense - in possible contravention of
the Family Educational Rights and Privacy Act. 259 But the hospital refused to hand over Elizabeth's records and contacted the
Smart family, which ultimately led to a public outcry over the subpoenas. There is no rhyme or reason to a procedure that is
supposed to protect defense strategy but that actually turns on the happenstance of whether third parties choose to notify crime
victims or the public about subpoenas they receive.
The haphazardness of the Advisory Committee's approach becomes even clearer when one realizes that defense "strategy" can
be protected only where the confidential information happens to rest in the hands of a third party rather than the victim herself.
Consider, for example, a rape victim who has talked to a rape crisis counselor, who takes notes of the meeting. A defendant
might attempt to subpoena those notes from the counselor. 260 But if the counselor had previously transferred the notes back to
the rape victim, then the subpoena would have to be directed to the victim herself - and the victim could then move to quash the
subpoena. This is not some academic hypothetical, as rape counselors in Pennsylvania in the 1980s used precisely this
procedure to protect their clients against abusive defense subpoenas. 261 Moreover, rape counselors - and, indeed, most third
parties involved in maintaining the personal and confidential information of victims - will probably have very strong incentives
257
See Wardius v. Oregon, 412 U.S. 470, 475-76 (1973); United States v. Bahamonde, 445 F.3d 1225, 1229 (9th Cir. 2006); Newman v.
Hopkins, 192 F.3d 1132, 1135 (8th Cir. 1999), vacated 529 U.S. 1084 (2000); United States ex rel. Veal v. DeRobertis, 693 F.2d 642, 646-
47 (7th Cir. 1982). Indeed, such reciprocity may not even be required if "significant governmental interests" support its omission. See
Wardius, 412 U.S. at 476.
258
Such as it was - apparently the only reason for the subpoenas was to try and dig up some dirt on the young kidnapping victim. See
Stephen Hunt, Defense Blasted for Obtaining Smart's School Records, Salt Lake Trib., Jan. 14, 2005, at B2.
259
20 U.S.C. § 1232g(b) (2006).
260
As will be discussed shortly in the next Section of this Article, such a subpoena would likely be inappropriate for substantive reasons as
well. See supra Part IV, § 3.
261
The Pennsylvania Supreme Court initially found that records held by rape counseling centers were subject to only limited protection from
defense subpoenas. See In re Pittsburgh Action Against Rape, 428 A.2d 126, 132 (Pa. 1981). The results of that unfortunate decision were
swift. Rape victims requested the return of their records from the center and, in some cases, even requested termination of the counseling
relationship. Commonwealth v. Wilson, 602 A.2d 1290, 1294 n.6 (Pa. 1992); Tera Jckowski Peterson, Comment, Distrust and Discovery: The
Impending Debacle in Discovery of Rape Victims' Counseling Records in Utah, 2001 Utah L. Rev. 695; Beth Stouder, Note, Pennsylvania
Establishes New Privilege for Communications Made to a Rape Crisis Center Counselor - In re Pittsburgh Action Against Rape, 55 Temp.
L.Q. 1124, 1146 (1982). In light of this serious problem, the Pennsylvania legislature enacted a new, absolute privilege protecting
communications to rape crisis counselors from any disclosure without the consent of the victim. See 42 Pa. Cons. Stat. § 5945.1(b) (2000)
(upheld against constitutional attack in Wilson, 602 A.2d at 1297).
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for disclosing the fact of the subpoena to the victim, because of both ethical and legal considerations. 262 Thus, the Advisory
[*909] Committee's use of ex parte procedures will only randomly protect defense strategy from disclosure.
The impossibility of truly ex parte procedures for Rule 17 subpoenas to third-parties has been recognized by several court
decisions. For example, in United States v. Urlacher, the defendant sought to use Rule 17 to subpoena financial, family, and
employment information concerning an individual believed by the defendant to be the government's main witness at trial. 263
The court declined to approve the subpoena ex parte, explaining that the custodian of the records "has a Rule 17(c) motion to
quash or modify, and one cannot easily imagine that such a motion should be heard and decided in secret … and hidden from
the opposing party and the public." 264 The court went on to explain the constitutional difficulties presented by such an
approach, given that the First Amendment creates a general public right of access to court proceedings. 265
Even if there is some arguable defense interest in not disclosing "strategy," that interest must be subordinated to the compelling
victim interests that are at stake. My proposal (and the Advisory Committee's) applies to third-party subpoenas directed to the
victim's personal or confidential information. Congress has commanded that victims must not only be treated with "fairness,"
but also "with respect for the victim's dignity and privacy." 266 Protecting dignity and privacy requires a hearing when
confidential information is at stake.
The Advisory Committee Note on its proposal does obliquely deal with this issue in a way that misstates the relevant legal
landscape. The Note accompanying the proposed Rule 17 amendment states vaguely that, "in exercising its discretion [about
whether to give notice of a request for a subpoena], the court should consider the relevance of the subpoenaed material to the
defense, whether giving notice would prejudice the defense, and the degree to which the subpoenaed material implicates the
privacy and dignity interests of the victim." 267 This imprecise listing of discretionary factors misstates the law. The court is
not required to "consider" some victim-related factors and then make a discretionary decision. The CVRA commands that
victims have "the right" to "be treated … with respect for the victim's dignity and privacy." 268 Thus, if withholding notice to a
victim fails to respect the victim's dignity and privacy (as I believe it invariably will), then the court must give notice - end of
story. 269 The CVRA flatly directs: [*910] "In any court proceedings involving an offense against a crime victim, the court
shall ensure that the crime victim is afforded the rights described [in the CVRA]." 270
The Advisory Committee Note is also an incomplete listing of the victim's rights that are implicated in decisions about issuing
subpoenas. From a procedural perspective, if the court holds a hearing on whether to issue the subpoena, the CVRA entitles a
262
Cf. 42 U.S.C. § 254b(k)(3)(B) (2006) (enforcing confidentiality of medical records).
263
136 F.R.D. 55, 551-57 (W.D.N.Y. 1991).
264
Id. at 556.
265
Id. at 556-57. But cf. United States v. Beckford, 994 F. Supp. 1010, 1027 (E.D. Va. 1997) (noting that Urlacher states the majority rule,
but concluding that ex parte procedures should be permitted in "exceptional circumstances").
266
18 U.S.C. § 3771(a)(8).
267
See Proposed Amendments, supra note 71, R. 17, at 8.
268
18 U.S.C. § 3771(a)(8).
269
In theory, the Advisory Committee could argue that the CVRA is unconstitutional in this respect and therefore must give way. But the
CVRA is presumed to be constitutional and the caselaw strongly supports the Act. See, e.g., Wardius v. Oregon, 412 U.S. 470, 475 (1973)
(finding no constitutional barrier to reciprocal discovery rules that act as a "two-way street"); cf. Forsythe v. Walters, 38 F. App'x 734, 737
(3d Cir. 2002) (finding that "application of the CVRA does not exact a punishment and therefore the CVRA can not violate the Ex Post Facto
Clause").
270
18 U.S.C. § 3771(b)(1) (emphasis added).
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crime victim to notice of that proceeding 271 and to an opportunity to attend that hearing, unless the victim's testimony would
clearly be materially affected from attending the hearing. 272 From a substantive perspective, subpoenas for personal or
confidential materials are often outside the scope of legitimate discovery, as will be explained in the next section. Such
subpoenas can also implicate a victim's right to "be reasonably protected from the accused." 273 For example, a defense
subpoena to the Department of Motor Vehicles for address information could very directly jeopardize a victim's safety. 274 Yet
the Advisory Committee Note makes no mention of such legitimate factors - factors the CVRA requires courts to consider.
Finally, given all this, if disclosure of defense "strategy" somehow remains the overriding issue in handling a subpoena, there
are less-abusive means for dealing with the problem. For example, a court could give the victim notice of the subpoena but also
enter an order forbidding the prosecution from using any information it might learn as a result of this disclosure. Such an order
is far preferable to the ex parte procedure proposed by the Advisory Committee. For the above reasons, the Advisory
Committee's proposal for Rule 17 is insufficiently protective of crime victims' procedural rights. 275
(3) The Lack of a Basis for Defense Subpoenas for Confidential Information
The Advisory Committee's approach is not only procedurally flawed but also substantively flawed. In particular, the Advisory
Committee arguably expands a defendant's power to subpoena confidential material from a victim, thereby creating new rights
for defendants at the expense of victims' rights under the [*911] CVRA. This violates the Rules Enabling Act, which provides
that court-promulgated rules shall not "abridge, enlarge or modify any substantive right." 276
The Advisory Committee's proposed rule would read: "[A] subpoena requiring the production of personal or confidential
information about a victim may not be served on a third party without a court order, which may be granted ex parte." 277 The
clear implication of this sentence is that, with a court order, a subpoena can be served on a third party requiring production of
personal or confidential information. Nothing in the proposed rules (or the Advisory Committee Notes) appears to require any
further showing before the subpoena would issue. This seems to give defendants unrestrained subpoena power over
confidential information. If this implication is correct, then the Advisory Committee has, remarkably, taken a law designed to
provide more protection for victims and used it to create less in clear contravention of the CVRA and the Rules Enabling Act.
The governing law on subpoenas comes from United States v. Nixon, which interpreted Rule 17 to require a subpoenaing party
to show relevancy, admissibility, and specificity of any information sought. 278 In particular, for a subpoena to issue before
trial, Nixon requires the moving party to show:
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by
exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance
271
Id. § 3771(a)(2).
272
Id. § 3771(a)(3).
273
Id. § 3771(a)(1).
274
In addition, the ability to subpoena such information would directly undermine current caselaw, which grants the defendant no right to
disclosure of the names and addresses of government witnesses before trial. For further discussion, see infra notes 325-335 and
accompanying text.
275
Apparently as a partial response to these concerns, the Advisory Committee made some changes in its proposed amendment to Rule 17.
See infra notes 232-233 and accompanying text.
276
28 U.S.C. § 2072(b).
277
Proposed Amendments, supra note 71, R. 17(c)(3), at 7.
278
418 U.S. 683, 700 (1974).
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of trial and that failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in
good faith and is not intended as a general "fishing expedition." 279
Because of this governing law, I proposed that Rule 17 should itself identify restrictions on a defendant's ability to subpoena
confidential information. My proposal incorporates specificity, relevancy, and admissibility components - conforming with,
rather than altering, existing law. My current proposal 280 requires the information be specifically described and admissible at
trial - and it bars evidence sought for impeachment purposes only. In contrast, the Advisory Committee seemingly enlarges the
substantive rights of defendants by failing to reference even a single Nixon factor in its proposal. Thus, unless a court takes it
upon itself to ensure the relevancy, specificity, and admissibility of the subpoenas, [*912] the Advisory Committee proposal
might provide the defendant with license to conduct the very "fishing expedition" that Nixon forbids.
The proposed Advisory Committee Note adds to this confusion. The Note indicates that in considering whether to issue the
subpoena, the court should consider "the relevance of the subpoenaed material to the defense." 281 But this is an overly broad
formulation. The court should only consider the relevance of the material to the defense at trial, since this is the only
permissible basis for a subpoena.
Current law clearly limits Rule 17 subpoenas to evidence that is admissible at trial. 282 The reason for Nixon's limitations of
relevance, admissibility, and specificity is that subpoenas are "not intended to provide a means of discovery for criminal cases"
but only to "expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials." 283 With
regard to admissibility, Nixon explained that "generally, the need for evidence to impeach witnesses is insufficient to require its
production in advance of trial." 284 In other words, documents sought for the narrow purpose of impeachment are not
evidentiary for the purposes of Rule 17. 285 In Nixon, only because the prosecutor made a sufficient preliminary showing that
the subpoenaed tapes contained "evidence admissible with respect to the offenses charged in the indictment" and that the
evidence could be validly used as nonimpeachment evidence, did the Court find the evidence to be subpoenable. 286
Courts apply Nixon's admissibility test strictly, rejecting, for example, subpoenas for hearsay evidence that would be
inadmissible at trial. 287 The cases have recognized that broad subpoenas run afoul of these limitations - including subpoenas
seeking information about crime victims. 288 For example, in United States v. Hang, the Eighth Circuit affirmed the district
279
Id. at 699-700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)).
280
My earlier proposal specifically required that no subpoena would issue "without a finding by the court that the information is relevant to
trial." Cassell, Proposed Amendments, supra note 4, at 875 (emphasis added). In view of the importance of the Nixon factors, it now seems
desirable to spell them all out, as my current proposal does.
281
Proposed Amendments, supra note 71, R. 17, at 8.
282
Nixon, 418 U.S. at 699-700.
283
Id. at 698-99 (emphasis removed).
284
Id. at 701.
285
See United States v. Cherry, 876 F. Supp. 547, 553 (S.D.N.Y. 1995).
286
Nixon, 418 U.S. at 700-702.
287
See, e.g., Cherry, 876 F. Supp. at 553 (rejecting subpoenaed prosecutors' investigative files as inadmissible hearsay).
288
Cf. United States v. Alexander, No. 94-10568, 1996 U.S. App. LEXIS 1662, 16-17 (9th Cir. Jan. 18, 1996) (quashing subpoenaed records
from rape center because nothing warranted disclosure prohibited by Victims of Crimes Act); United States v. Cherry, No. 90-5784, 1991
U.S. App. LEXIS 18192, 11-13 (4th Cir. Aug. 12, 1991) (quashing subpoenaed police files because they were in part irrelevant); Amsler v.
United States, 381 F.2d 37, 51 (9th Cir. 1967) (holding subpoena of Frank Sinatra, regarding ransom money, an oppressive and unreasonable
use of the court).
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court's refusal to issue subpoenas designed to uncover documents relating to the mental health of a victim and various
witnesses. 289 The court described the broad and speculative nature of the request directed toward a hospital, observing that the
defense was ""hard- [*913] pressed' to describe the information it hoped to discover in the materials." 290 Consistent with
Nixon, the court found the defendant's request "exemplified his "mere hope' that the desired documents would produce
favorable evidence, and a Rule 17(c) subpoena cannot properly be issued upon a "mere hope.'" 291 Similarly, in State v. Percy,
the Vermont Supreme Court upheld the lower court's refusal to order production by the victim. 292 The defendant had
requested production of the victim's mental health information, arguing it was necessary for him to present his defense. 293 The
Vermont Supreme Court rejected the defendant's arguments, finding that he made no showing of the materiality or helpfulness
of the information - "indeed, [the] defendant essentially admitted the underlying acts." 294 The court also found it notable that
the information sought was in the hands of a third party - not the State - and that the defendant made a broad request, rather
than specifying particular records in the subpoena. 295 In aggregate, the court considered those factors "fatal" to the defendant's
request. 296
These cases were all decided against a constitutional backdrop that must favor crime victims: a criminal defendant has no
constitutional right to conduct discovery, while confidential and personal information of crime victims may be protected by a
constitutional right of privacy.
The Supreme Court has clearly held that "there is no general constitutional right to discovery in a criminal case." 297 Indeed,
the Constitution "has little to say regarding the amount of discovery which the parties must be afforded." 298 The only
remotely related due process requirement the Court has recognized is the requirement that prosecutors disclose evidence that is
favorable to the accused and material to guilt or punishment 299 - evidence that would deprive the defendant of a fair trial if not
disclosed. 300 But even this rule - the Brady rule - is not a discovery rule and it does not reflect any discovery rights. Rather, it
is a "self-executing constitutional rule" - a rule of "fairness and minimum prosecutorial obligation." 301 Recognizing this, the
Supreme Court has carefully circumscribed Brady: "An interpretation of Brady to create a broad, constitutionally required right
of discovery would entirely alter the character and balance of our present systems of [*914] criminal justice." 302 Indeed,
289
75 F.3d 1275, 1283-84 (8th Cir. 1996).
290
Id. at 1283.
291
Id. (citing United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980)).
292
548 A.2d 408, 415 (Vt. 1988).
293
Id. at 413.
294
Id. at 414-15.
295
Id.
296
Id. at 415.
297
Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see also United States v. Ruiz, 536 U.S. 622, 629 (2002) (quoting Weatherford, 429
U.S. at 559).
298
Wardius v. Oregon, 412 U.S. 470, 474 (1973).
299
See Brady v. Maryland, 373 U.S. 83, 87 (1963).
300
See United States v. Bagley, 473 U.S. 667, 675 (1985).
301
United States v. Garrett, 238 F.3d 293, 302 (5th Cir. 2000) (citation and internal quotation marks omitted).
302
Bagley, 473 U.S. at 675 n.7 (citation and internal quotation marks omitted).
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Brady's requirements are incongruous with traditional discovery, as Brady does not even apply at pretrial stages. 303 Rule 16
of the Federal Rules of Criminal Procedure was built on this foundation. The assumption that no right to discovery exists "is
still the underlying predicate for Rule 16." 304
Because there is no constitutional right to discovery, discovery is determined largely by statute and court rule. 305 Discovery
statutes typically apply to exculpatory material within the possession or control of the state. 306 For example, in the Supreme
Court case of Pennsylvania v. Ritchie, the defendant sought recorded statements made to a youth counselor concerning an
alleged assault. 307 The recorded statements were taken and possessed by Pennsylvania's Children and Youth Services, a statecreated
agency. 308 The Court concluded that due process considerations required an in camera review of the records to see
whether they might contain information material to the defense. 309 The Court explained that "it is well settled that the
government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt
or punishment." 310 The Court cited the well-known decision of Brady v. Maryland, 311 as authority for this conclusion. 312
Ritchie and other cases relying on Brady have no relevance to the issue of subpoenas to third parties. "Brady imposes a
constitutional duty on prosecutors to turn over exculpatory evidence … ." 313 The rationale for such a rule is that the
prosecutor, after initiating criminal charges, should not be the "architect" of an unfair proceeding. 314 Plainly, crime victims
(and third parties holding records about crime victims) are not state actors. They are not architects of the criminal proceedings
and therefore are not subject to these constitutional restrictions on state action. The Seventh Circuit explained this point clearly
in United States v. [*915] Hach. 315 There, the defendant sought to compel a third-party witness to turn over her medical and
psychiatric records to the court for in camera review. 316 The witness refused to release her records, which were not held by
any government agency. 317 The government argued it was powerless to force her to accede to the demand. 318 The Seventh
Circuit agreed, holding that "a failure to show that the records a defendant seeks are in the government's possession is fatal to [a
Ritchie claim]." 319 The Seventh Circuit noted that the two other opinions it could locate on the due process question had
reached precisely the same conclusion. 320 In United States v. Skorniak, the Eighth Circuit held that a defendant could not
subpoena medical records of a witness. 321 And the government is under no obligation to seek out potentially exculpatory
303
See United States v. Frick, 490 F.2d 666, 671 (5th Cir. 1978) (citing Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968)).
304
United States v. Oxman, 740 F.2d 1298, 1307 (3d Cir. 1984).
305
See 4 Wayne R. LaFave et al., Criminal Procedure § 20.3m, at 930-31 (3d ed. 2000).
306
See, e.g., Fed. R. Crim. P. 16(a) (requiring "the government" to disclose to the defense various kinds of information).
307
480 U.S. 39, 43 (1987).
308
See id.
309
Id. at 47.
310
Id. at 57 (emphases added).
311
373 U.S. 83 (1963) (holding government must disclose exculpatory evidence in its possession to the defense).
312
Richie, 480 U.S. at 57.
313
Bolduc v. United States, 402 F.3d 50, 56 n.6 (1st Cir. 2005) (emphasis added). Courts have held that Brady obligations extend only to
prosecutors, because the Supreme Court has not imposed this duty on others. See Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir. 2004).
314
See Brady, 373 U.S. at 88.
315
162 F.3d 937 (7th Cir. 1998).
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evidence, the court reasoned. 322 Similarly, a Maryland appellate court, in Goldsmith v. State, denied a defendant's attempt to
obtain access to a witness's psychiatric record. 323 After examining the relevant authorities, the court explained: "We find no
common law, court rule, statutory or constitutional requirement that a defendant be permitted pretrial discovery of privileged
records held by a third party." 324 Thus, crime victims (and third parties holding information about crime victims) will only
rarely - if ever - have information a defendant is constitutionally entitled to examine.
Because a defendant has no constitutional right to discovery, any such claim must rest on a statute. Yet the federal statutes, if
anything, cut against broad discovery claims. The Jencks Act, 325 for example, restricts access to statements by [*916]
government witnesses. 326 It specifically mandates that only after a government witness testifies on direct examination shall
the statement of the witness be the subject of discovery. 327 The Jencks Act does not even allow access to all statements - a
witness statement need only be produced if the statement "relates to the subject matter "as to which the witness has testified'"
not if it merely "relates to the subject matter "at issue in [the] case.'" 328 Even then, only a ""substantially verbatim recital of an
oral statement made by said witness to an agent'" is discoverable under the Jencks Act. 329 Although the Act was meant to
preserve defendants' right to access information that might aid in impeaching government witnesses at trial, "the legislative
history expresses a much greater concern with limiting the application of the Jencks decision so that it would not hamper the
workings of law enforcement by forcing wholesale disclosure of government materials and files." 330
The Jencks Act also bars any pretrial disclosure of witness statements. "Congress provided for discovery of statements only
after the witness has testified, out of concern for witness intimidation, subornation of perjury, and other threats to the integrity
of the trial process." 331 Courts have held true to this congressional determination, blocking defense efforts to obtain pretrial
discovery about government witnesses. For example, in United States v. Coppa, the Second Circuit overturned the district
court's approval of a scheduling order requiring the government to identify its witnesses in advance of trial. 332 The district
court, "mindful of [the Act's] concern" for witness safety, had allowed the government to file ex parte motions delaying
discovery of the witnesses' identity where such disclosure would pose a threat to the witnesses' lives or safety. 333 The Second
Circuit, however, found this protection insufficient to meet the witness-protective goals of the Jencks Act. Specifically, the
316
Id. at 946.
317
Id.
318
Id.
319
Id. at 947. The Seventh Circuit also noted that the Wisconsin Supreme Court had reached a contrary conclusion, relying on state law
grounds. Id. at 946 n.5. The Wisconsin decisions do not offer a principled reason for extending Ritchie to private records and should not be
regarded as persuasive authority here. See State v. Shiffra, 499 N.W.2d 719, 722 (Wis. Ct. App. 1993) (concluding that the issue of application
of Ritchie to private records had already been decided in State v. S.H.); State v. S.H., 465 N.W.2d 238, 241 (Wis. Ct. App. 1999) (applying
Ritchie to private records without any discussion of the issue).
320
Hach, 162 F.3d at 947. Other courts have reached the same result. See, e.g., United States v. Hall, 171 F.3d 1133, 1145 (8th Cir. 1999)
(upholding decision not to compel disclosure of witness medical and psychiatric records: "the government has no obligation to obtain for a
defendant records that it does not already have in its possession or control"); State ex rel. Romley v. Superior Court, 836 P.2d 445, 452 (Ariz.
Ct. App. 1992) ("Brady emphasizes suppression of evidence by the prosecution, but does not require the victim to cooperate with the defense
[to produce medical records held by the victim].").
321
59 F.3d 750, 755-56 (8th Cir. 1995).
322
Id.
323
651 A.2d 866, 868, 877 (Md. 1995).
324
Id. at 873.
325
18 U.S.C. § 3500 (2006).
326
Id. § 3500(a).
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court determined "this remedy does not address the Government's justifiable concerns regarding the risk of witness tampering
in circumstances where there is no evidence that the life or safety of a prospective witness is in danger." 334 In other words,
Jencks Act protection is not limited to situations where the government shows an actual danger to witnesses - its witnessprotective
qualities reach much further. 335
[*917] The lack of grounds for subpoenas seeking victim information is more evident when viewed against a legal landscape
that gives defendants no right before trial to obtain even the names of government witnesses. Current law provides no basis for
the pretrial disclosure of the names and addresses of government witnesses - including witnesses who are crime victims. For
one thing, Rule 16, which governs discovery and inspection in criminal cases, contains no provisions for such disclosure. This
omission was purposeful and mirrors the witness-protective purposes of the Jencks Act:
A majority of the Conferees [that is, congressional members determining the language of Rule 16] believe it is not in the
interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the
names and addresses of its witnesses before trial. Discouragement of witnesses and improper contacts directed at influencing
their testimony, were deemed paramount concerns in the formulation of this policy. 336
Rule 16, therefore, along with other criminal discovery rules, "does not entitle defendants to pretrial discovery of names and
addresses of prospective government witnesses or persons who have knowledge of the case." 337
By statute, capital cases are exempt from this rule. In capital cases, the accused is entitled to a copy of the indictment and a list
of juror and witness names and address - but only three days in advance of the trial. 338 And notably, the same statute
explicitly provides for the withholding of this information "if the court finds by a preponderance of the evidence that providing
the list may jeopardize the life or safety of any person." 339 No statute authorizes similar disclosures in noncapital cases. As
the Eighth Circuit noted in United States v. Hutchings, "neither [Rule 16(a)] governing information subject to disclosure by the
Government in criminal cases, nor any other federal rule or statute requires the Government to supply names of potential
327
See id. § 3500(b); see also Fed. R. Crim. P. 26.2 (integrating Jencks Act into the federal rules).
328
United States v. Susskind, 4 F.3d 1400, 1404 (6th Cir. 1993).
329
United States v. Martinez, 87 F.3d 731, 739 (5th Cir. 1996) (quoting Palermo v. United States, 360 U.S. 343, 351 (1959)).
330
United States v. Bobadilla-Lopez, 954 F.2d 519, 521 (9th Cir. 1992).
331
United States v. Tarantino, 846 F.2d 1384, 1414 (D.C. Cir. 1988).
332
267 F.3d 132, 138, 145-46 (2d Cir. 2001).
333
Id. at 138-39.
334
Id. at 139.
335
See, e.g., United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988) ("Providing the defense with such a broad right of pre-trial
discovery would vitiate an important function of the Jencks Act, the protection of potential government witnesses from threats of harm or
other intimidation before the witnesses testify at trial.").
336
H.R. Rep. No. 94-414, at 12 (1975) (Conf. Rep.), reprinted in 1975 U.S.C.C.A.N. 713, 716.
337
United States v. Laurins, 660 F. Supp. 1579, 1584 (N.D. Cal. 1987).
338
See 18 U.S.C. § 3432 (2006).
339
See id.
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witnesses to a criminal defendant in a noncapital case." 340 Many other courts have reached substantially the same conclusion.
341
[*918] A few older cases held that district courts possess authority to compel the government to disclose the identity of its
witnesses before trial. However, the basis for such grants of authority now seems defunct. For instance, in United States v.
Armstrong, the Ninth Circuit recognized no authority exists in the federal rules for requiring the government to disclose the
names of its witnesses. 342 Still, the court held that district courts have authority to require such disclosure based on Federal
Rule of Criminal Procedure 57(b). 343 This rule acts as a stopgap: in the absence of controlling law, it allows judges to
"regulate practice in any manner consistent with federal law, these rules, and the local rules of the district." 344 In light of the
conference report on Rule 16, compelling disclosure of witness names before trial appears inconsistent with the federal rules.
And even if the Ninth Circuit's approach was valid at the time Armstrong was decided, such an approach is no longer valid in
light of the CVRA. Rule 57(b) only provides a basis for court authority in the absence of controlling law - since 2004, the
CVRA has controlled the treatment of victims. The CVRA clearly mandates a victim be "reasonably protected from the
accused," 345 as well as treated with "fairness and with respect for the victim's dignity and privacy." 346 Disclosure of a
victim's name and address before trial is governed by these mandates, not vague gap-filling provisions.
If a defendant cannot even validly compel disclosure of a victim's name and address in advance of trial, it is nonsensical to
think a defendant could validly subpoena the same information from the Department of Motor Vehicles or the telephone
company - and it is incredible to think a defendant could use the Advisory Committee's rule to subpoena even more personal
victim information. The rules would be backward indeed if a defendant were able to subpoena a victim's confidential mental
health records in a legal system that disallows compelled disclosure of a witness's name or address. Instead, the only rational
conclusion is that because defendants have no right to witnesses' identifying information, they certainly have no right to other
sorts of victim-related discovery. Clearly, then, defendants have little constitutional or statutory "heft" behind an argument for
subpoenas directed at obtaining victim information.
On the other hand, victims will often have legitimate reasons for resisting such subpoenas - reasons that are protected not only
by the CVRA but also by the Constitution, under current case law, and as part of the right of privacy. 347 One aspect of this due
process privacy right is "the individual interest in avoiding [*919] disclosure of personal matters" 348 or, in other words, "the
340
751 F.2d 230, 236 (8th Cir. 1984); accord United States v. House, 939 F.2d 659, 663 (8th Cir. 1991) ("Criminal defendants in noncapital
cases are not entitled to pretrial disclosure of witnesses.").
341
See, e.g., United States v. Pearson, 340 F.3d 459, 468 (7th Cir. 2003); United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990); United
States v. Barrett, 766 F.2d 609, 617 (1st Cir. 1985); United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970).
342
631 F.2d 951, 954-55 (9th Cir. 1980).
343
Id. at 955.
344
Fed. R. Crim. P. 57(b).
345
18 U.S.C. § 3771(a)(1) (2006).
346
Id. § 3771(a)(8).
347
My discussion of these issues draws heavily on thoughts from an extremely knowledgeable crime victims' litigator - Wendy Murphy. See
Wendy J. Murphy, Crime Victims, Not Defendants, Enjoy Constitutional Rights When the Accused Seeks Access to Private Third-Party
Records (2007) [hereinafter Murphy, Crime Victims]; see also Wendy J. Murphy, "Federalizing" Victims' Rights to Hold State Courts
Accountable, 9 Lewis & Clark L. Rev. 647 (2005).
348
Whalen v. Roe, 429 U.S. 589, 598-99 (1977). In his Whalen concurrence, Justice Brennan asserted that if a statute allowed indiscriminate
disclosure of personal medical records, "such a deprivation [of privacy] would only be consistent with the Constitution if it were necessary to
promote a compelling state interest." Id. at 607 (Brennan, J., concurring).
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privacy interest in keeping personal facts away from the public eye." 349 Consider, for example, the privacy of therapeutic
counseling communications. Federal case law establishes that such communications are protected by a constitutional privacy
right 350 - a right that would be gutted if defendants were allowed to freely subpoena victims' mental health records. Moreover,
some courts and commentators suggested the Fourth Amendment's prohibition against unreasonable searches and seizures
applies to (and may prohibit) court-mandated discovery of victims. 351
For all these reasons, a defense subpoena seeking third-party information about a crime victim rests on extraordinarily shaky
ground. The Advisory Committee must ensure that through casual drafting it does not inadvertently invite more defense
subpoenas for such information. The Advisory Committee's current draft may well have that effect, by seemingly authorizing
such subpoenas without regard to the numerous restrictions governing their use (and even allowing them to be issued ex parte).
The Committee should, instead, follow my approach by indicating very clearly that such subpoenas are only allowed where
specifically identified evidence will be obtained that is relevant to and admissible at trial, and [*920] that is otherwise
reasonable. As a weaker but still positive alternative, the Committee could include an Advisory Committee Note making this
point clear. One possible note would be as follows:
Rule 17(c)(3) is intended to provide greater procedural protection for crime victims than exists under current law. It is not
intended to expand in any way the permissible grounds for defense subpoenas. Like other trial subpoenas, a defense subpoena
seeking victim information must narrowly request only information admissible at trial and may not be used for discovery. See
United States v. Nixon, 418 U.S. 683[, 700] (1974) (requiring subpoenaing party to "clear three hurdles: (1) relevancy; (2)
admissibility; (3) specificity"). A defense subpoena must also not tread on a crime victim's constitutionally-protected privacy
interests, see Whalen v. Roe, 429 U.S. 589, 598-99 (1977), or statutorily-protected interests to respect for privacy and dignity,
see Crime Victims' Rights Act, 18 U.S.C. § 3771(a) (2000 & Supp. 2006). As a result, such subpoenas will only rarely be
proper. See generally Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal
Procedure, 2007 Utah L. Rev. 861. 352
Rule 18 - Victims' Interests in Setting the Place of Prosecution The Proposals:
I proposed amending Rule 18 to require the court to consider the convenience of victims in setting the place of prosecution as
follows:
Rule 18. Place of Prosecution and Trial
349
U. S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 769 (1989).
350
See Borucki v. Ryan, 827 F.2d 836, 845 (1st Cir. 1987) (recognizing right to privacy issues that arise with regard to communications to
mental health workers); Caesar v. Mountanos, 542 F.2d 1064, 1072 (9th Cir. 1976) (finding psychotherapist-patient communications fall
within right to privacy); Haw. Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1038 (D. Haw. 1979) (finding zone of autonomy protects
decision to communicate personal information to psychiatrist); see also Nat'l Transp. Safety Bd. v. Hollywood Mem'l Hosp., 735 F. Supp. 423,
424 n.2 (S.D. Fla. 1990) (citation and internal quotations omitted).
351
See, e.g., People v. Nokes, 183 Cal. App. 3d 468, 476-78 (Cal. Ct. App. 1986) (reviewing Fourth Amendment precedent in its
determination of the validity of court-ordered examinations of victims and determining precedent to be contrary to allowing such
examinations); see also Murphy, Crime Victims, supra note 347 ("The Fourth Amendment is not only a right of criminal defendants, but a
"right of the people' to be free from unreasonable searches of their "persons, houses, papers and effects' … . Therefore, the Fourth
Amendment protections extended to criminal defendants in Boyd must also be extended to the third parties impacted by criminal litigation.");
Troy Andrew Eid, Comment, A Fourth Amendment Approach to Compulsory Physical Examinations of Sex Offense Victims, 57 U. Chi. L.
Rev. 873, 894 (1990) (arguing that court-mandated physical examinations of victims' of sexual crimes are prohibited by the Fourth
Amendment, as interpreted by the Supreme Court). But cf. Borucki v. Ryan, 827 F.2d 836, 844 (1st Cir. 1987) (finding information the
Fourth Amendment protects from seizure is not "necessarily entitled to protection under a right of nondisclosure originating in the Fourteenth
Amendment").
352
In response to my criticisms, the Advisory Committee agreed to make some changes in its proposed rule, making it much more difficult
(but not impossible) for defendants to obtain an ex parte subpoena. See infra notes 588-592 and accompanying text.
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Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was
committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any
victim, and the witnesses, and the prompt administration of justice. 353
The Advisory Committee adopted this proposal verbatim. 354
[*921] Discussion:
Little needs be said about the Advisory Committee's agreement with my proposal here, other than to note that the Committee's
rationale for this change was "to implement the victim's "right to be treated with fairness' under the Crime Victims' Rights Act."
355 Why the Advisory Committee chose to implement the victims' fairness rights in Rule 18 - and only Rule 18 - is not
immediately clear. 356
Rule 20 - Victims' Views Considered Regarding Consensual Transfer The Proposals:
I proposed that Rule 20 be amended to allow the court to consider the victim's views in any decision to transfer a case as
follows:
Rule 20. Transfer for Plea and Sentence
(a) Consent to Transfer. A prosecution may be transferred from the district where the indictment or information is pending, or
from which a warrant on a complaint has been issued, to the district where the defendant is arrested, held, or present if:
(1) the defendant states in writing a wish to plead guilty or nolo contendere and to waive trial in the district where the
indictment, information, or complaint is pending, consents in writing to the court's disposing of the case in the transferee
district, and files the statement in the transferee district; and
(2) the United States attorneys in both districts approve the transfer in writing after consultation with any victim. If any victim
objects to the transfer, the United States attorney in the transferring district or the victim's attorney shall advise the court where
the indictment or information is pending of the victim's concerns. 357
I also proposed a similar change should be made to Rule 20(d) regarding transfer of juvenile proceedings. 358
The Advisory Committee recommended no change to Rule 20. 359
[*922] Discussion:
The Advisory Committee rejected this proposed change for the following reasons:
The CVRA does not specifically address transfer. It does give the victim a right to confer with the attorney for the government,
18 U.S.C. § 3771(a)(5), but that is not the same as requiring the attorney for the government to notify the court of the victim's
views regarding transfers. Indeed, the CVRA provides that "nothing in this chapter shall be construed to impair the
prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 3771(d)(6). Accordingly, the
353
Cassell, Proposed Amendments, supra note 4, at 878-79.
354
See Proposed Amendments, supra note 71, R. 18, at 9.
355
Id. at 352.
356
See supra notes 95-97 and accompanying text (discussing this point).
357
Cassell, Proposed Amendments, supra note 4, at 879-80.
358
Id. at 879-80.
359
Proposed Amendments, supra note 71.
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CVRA contemplates that the attorney for the government will consider the victim's interests in exercising prosecutorial
discretion, including the discretionary determination whether to consent to a Rule 20 transfer. The Subcommittee was not
persuaded that the rule should disturb this statutory balance by requiring the attorney for the government to advise the court of
a victim's objection to a Rule 20 transfer. In appropriate cases, the attorney for the government should appraise the court of the
victim's view. 360
The Advisory Committee is able to claim that the CVRA does "not specifically address transfer" only because it reviewed an
amputated CVRA - that is, a CVRA without a right to fairness. Under an unblinkered fair reading of the CVRA, the right to
fairness applies "specifically" to Rule 20 transfer decisions, no less than the Rule 18 decision to set the place of prosecution just
discussed and, indeed, all other decisions in the criminal justice process. Thus, the Advisory Committee has unfairly stacked
the deck in deciding that it would not "disturb this statutory balance," when it chose not to weigh the victim's right to fairness
as part of that balance.
Even under its truncated view of the statute, the Advisory Committee does envision that the prosecutors will confer with
victims about Rule 20 transfer decisions. But the Committee did not want to require prosecutors to notify courts of a victim's
objection, venturing only that "in appropriate cases, the attorney for the government should appraise the court of the victim's
views." 361 The Committee is coy on the question of when it would not be appropriate for the prosecutor to fail to notify a
court of the victim's views. Whenever an unrepresented crime victim objects to transferring a case, prosecutors, as officers of
the court, have a duty to pass that objection along to the court as relevant [*923] information bearing on the transfer decision.
362 The rule should state that fact directly.
Finally, nothing in my proposal would impair prosecutorial discretion. My proposal deals solely with ensuring that victim
information is passed along to the judge who must approve a transfer decision. The government remains entirely free to make
whatever decision it wants on the issue and argue whatever position it believes is appropriate. Moreover, the CVRA itself
envisions that the government may have obligations to assert victims' rights. For starters, the CVRA requires prosecutors to
"make their best efforts" to see that victims are "accorded" their rights. 363 In addition, the CVRA gives prosecutors the ability
to "assert" victims' rights. 364 This provision was designed to ensure that victims' rights are not inadvertently lost because a
victim lacks legal counsel. As Senator Kyl explained, "This provision also recognizes that, at times, the government's attorney
may be best situated to assert a crime victim's rights … because the crime victim is not available at a particular point in the trial
… ." 365 In light of its obligations to accord victims their rights and to enforce those rights, the government should at least
inform the court when a victim has concerns about a transfer.
Rule 21 - Victims' Views Considered Regarding Transfer for Prejudice The Proposals:
I proposed that Rule 21 be amended to require consideration of the victim's interest in whether a case should be transferred as
follows:
(e) Victims' Views. The court shall not transfer any proceeding without giving any victim an opportunity to be heard. The court
shall consider the views of the victim in making any transfer decision. 366
360
CVRA Subcommittee Memo, supra note 66, at 17.
361
Id. (emphasis added).
362
Cf. State v. Casey, 2002 UT 29, PP 9-13, 44 P.3d 756 (noting prosecutors' obligation to relay to the court victim's request to be heard).
363
18 U.S.C. § 3771(c)(1) (2006).
364
Id. § 3771(d)(1).
365
150 Cong. Rec. S10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
366
Cassell, Proposed Amendments, supra note 4, at 880.
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The Advisory Committee recommended no change to this rule. 367
Discussion:
The Advisory Committee rejected this change because, in its view, the fact that the CVRA did not specifically address transfer
decisions precluded any amendment:
[*924]
Judge Cassell grounds his proposal on the general provision of the CVRA that gives a victim a right to be treated with
"fairness." 18 U.S.C. § 3771(a)(8). The Subcommittee was not persuaded that this general language warranted an amendment
that would require the court to consider the victim's views. In the case of transfers for prejudice, the preferences of the victim
could not outweigh the defendant's right to a fair proceeding. In the case of transfers for convenience, the statutory right to
confer with the attorney for the government provides the mechanism for incorporating the victim's views. As in the case of
Rule 20, the Subcommittee declined to go beyond the carefully crafted limitations of the statute. In appropriate cases, the
attorney for the government should appraise the court of the victim's views. 368
Once again, the Advisory Committee's position clashes with the statute. The Committee does not argue (nor does it seem
plausible to argue) that transferring a case to a distant location without even considering the victim's view treats the victim
fairly. Instead, the Committee ducks the implications of the right to fairness because it is "general language," as though a
"general" command from Congress can be ignored.
Perhaps recognizing the weakness of its position, the Advisory Committee goes on to craft a policy argument against victims
being heard. It divides transfer cases into two types - those for convenience and those for prejudice - and concludes that victims
should not enjoy a guaranteed right to be heard in either situation. In neither case is the analysis convincing.
With regard to transfers for convenience, the Committee contends that the victim's right to confer with prosecutors is sufficient
protection. But a victim's conference with those very same government authorities who find it convenient to move the case
hardly will give victims much comfort - much less the right to fairness that Congress has mandated. The Committee also is less
than clear when it directs prosecutors to advise the court of the victim's objections "in appropriate cases." It is hard to think of
any case when a prosecutor would be justified in concealing an unrepresented victim's concerns from the court. 369 It is far
simpler - and, more to the point, simply fair - to ensure that the court will always consider a victim's views on transfer.
With regard to transfers to avoid prejudice, the Advisory Committee concludes that a victim's views could not "outweigh" the
defendant's right to a fair proceeding. But no one argues that victims' views will necessarily outweigh a defendant's argument;
the limited point is simply that victims' views should be considered in the balance. Moreover, a victim may be able to
demonstrate that a defendant's argument is unsupported or that other, less burdensome alternatives to [*925] transferring a
case exist. Surely these are sufficiently important reasons to let a victim be heard before a case is moved.
The Advisory Committee also appears to overlook the constitutional grounding that a victim's opposition to a transfer decision
enjoys. In contrast to the Sixth Amendment, which gives defendants in a state prosecution a right to trial in their home state,
370 Article III simply commands that in a federal prosecution, "the Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury; and such Trial shall be held in the State where the said Crimes have been committed." 371 This Article III vicinage
right was designed to protect not only the rights of the defendant but also the rights of the community - including victims in the
367
Proposed Amendments, supra note 71.
368
CVRA Subcommittee Memo, supra note 66, at 17-18.
369
In the case of a represented victim, the prosecutor could reasonably rely on the victim's counsel to present appropriate arguments.
370
U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed … ." (emphasis added)).
371
U.S. Const. art. III, § 2 (emphasis added).
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community. 372 The provision is designed to secure a trial within the same political community ("the state") in which the
victim would likely reside. 373
The Supreme Court's decisions on right of public access to trials bolsters the understanding of the Article II's provision to
protect the community interest. In cases such as Richmond Newspapers, Inc. v. Virginia, the Court has held that implicit in the
First Amendment is a guarantee of the public's right to attend trials. 374 Compelling victims' interests underlie this guarantee.
As the Court has explained, "public proceedings vindicate the concerns of the victims and the community in knowing that
offenders are being brought to account for their criminal conduct." 375 And as Justice Blackmun has emphasized, "The victim
of the crime, the family of the victim, [and] others who have suffered similarly, … . have an interest in observing the course of
a prosecution." 376 Victims are vitally interested in observing criminal trials because society has withdrawn "both from the
victim and the vigilante the enforcement of criminal laws, but [it] cannot erase from people's consciousness the fundamental,
natural yearning to see justice done - or even the urge for retribution." 377
For purposes of this Article, it is not necessary to definitively trace how victims' constitutional interests play out against a
defendant's right to avoid a prejudicial trial. The very limited point here is merely that victims should be heard on any transfer,
so that a judge can make a fully informed decision. Even if the judge determines to transfer a case, the victim may have
valuable information for the judge on where to transfer the case (for example, to an adjacent district or state [*926] rather than
a distant one) or how to impanel an unbiased jury (for example, importing a jury rather than exporting the trial). 378
An illustration of the general approach of the proposed rule comes from the leading case of State v. Timmendequas, 379
decided by the New Jersey Supreme Court. In Timmendequas, the trial judge imported a jury from a distant community to hear
a capital case rather than forcing the family of a murdered young girl to travel to another district. 380 Construing New Jersey
state law provisions similar to the CVRA's, the New Jersey Supreme Court explained that the trial judge properly considered
the views of the victim's family:
Over the past decade, both nationwide and in New Jersey, a significant amount of legislation has been passed implementing
increased levels of protection for victims of crime. Specifically, in New Jersey, the Legislature enacted the "Crime Victim's Bill
of Rights." That amendment marked the culmination of the Legislature's efforts to increase the participation of crime victims in
the criminal justice system.
The purpose of the Victim's Rights Amendment was to "enhance and protect the necessary role of crime victims and witnesses
in the criminal justice process. In furtherance of [that goal], the improved treatment of these persons should be assured through
the establishment of specific rights." One of the enumerated rights guaranteed for victims is "to have inconveniences associated
with participation in the criminal justice process minimized to the fullest extent possible."
372
See also Drew L. Kershen, Vicinage, 29 Okla. L. Rev. 801 (1976). See generally Cassell, Proposed Amendments, supra note 4, at 880-84;
Steven A. Engel, The Public's Vicinage Right: A Constitutional Argument, 75 N.Y.U. L. Rev. 1658 (2000).
373
See United States v. Bishop, 76 F. Supp. 866, 868 (D. Or. 1948).
374
448 U.S. 555, 575-76 (1980).
375
Press-Enter. Co. v. Superior Court, 464 U.S. 501, 509 (1984).
376
Gannett Co. v. DePasquale, 443 U.S. 368, 428 (1979) (Blackmun, J., concurring in part and dissenting in part).
377
Richmond Newspapers, 448 U.S. at 571.
378
See generally Beloof, Cassell & Twist, supra note 6, at 392-99 (reviewing caselaw on the victim's interest in venue decisions).
379
737 A.2d 55 (N.J. 1999), cert. denied, 534 U.S. 858 (2001).
380
Id. at 64-69.
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… .
… . The [trial] court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was
simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim's family into
account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that
decision. 381
Timmendequas demonstrates that victims can have legitimate interests in transfer decisions that can be accommodated without
violating defendants' rights. Rule 21 ought to be amended to allow victims to provide that kind of information to the judge
before any transfer decision is made. 382
[*927] Rule 23 - Victims' Views Considered Regarding Nonjury Trial The Proposals:
I proposed that the court should be required to consider the views of victims before allowing waiver of a jury trial as follows:
Rule 23. Jury or Nonjury Trial
(a) Jury Trial. If the defendant is entitled to a jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves after considering the views of any victims. 383
The Advisory Committee did not recommend any change to this rule. 384
Discussion:
Here again, the Advisory Committee declined to adopt my recommendation because it goes "beyond the specific provisions of
the CVRA, which do not address the issues whether the trial should be to the court or to a jury." 385 It is not necessary to repeat
the arguments about the victim's right to fairness here, other than to note that the "preferred" trial method in the federal courts is
a jury trial. 386 Why it is fair to deviate from that preferred method without first listening to the victims is not immediately
clear.
But, for the sake of argument, assume that nothing in the CVRA requires the Advisory Committee to change this rule. The fact
remains that the Advisory Committee could still change the rule if there were good reasons to do so. In view of this fact, it is
surprising that the Committee never defends the logic behind allowing a court to dispense with a jury trial without even hearing
from a victim. To help protect the general public interest in trial by jury, Rule 23 currently requires not only prosecutor
381
Id. at 76 (citations omitted). The hardship to the victim was established via affidavits from the victim's family provided to the court by
the prosecutor. Id.
382
The Advisory Committee recently recommended a change to Rule 21(b) that does not address the points concerned in this Article. See
infra notes 585-586 and accompanying text.
383
Cassell, Proposed Amendments, supra note 4, at 884.
384
Proposed Amendments, supra note 71.
385
CVRA Subcommittee Memo, supra note 66, at 18.
386
Singer v. United States, 380 U.S. 24, 35 (1965) ("Trial by jury has been established by the Constitution as the "normal and … preferrable
mode of disposing of issues of fact in criminal cases.'") (alteration in original) (citation omitted). See generally Rachel E. Barkow,
Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 68 (2003).
DAVID SCHOEN
2007 Utah L. Rev. 861, *927
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approval, 387 but also court approval. 388 Any approval [*928] requires careful weighing of the competing concerns. The
Supreme Court has instructed that
the duty of the trial court … [in considering whether to approve a jury trial waiver] is not to be discharged as a mere matter of
rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or
from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.
389
This is a "serious and weighty responsibility." 390
To discharge that serious and weighty responsibility, the Advisory Committee should draft Rule 23 so that the trial court should
receive as much relevant information as possible. The victim may be well situated to provide useful information about how the
public will view a nonjury trial. The proposed rule change takes the modest step of allowing the victim to be heard before the
court approves any nonjury trial.
(New) Rules 32(e), (f), (h), and (i) - Disclosure of the Presentence Report to Victims and Opportunity for Victims to Object and
Be Heard 391 The Proposals:
In the federal system, the presentence report is a critical part of the sentencing process. I therefore recommended that the
prosecutor should be required to disclose relevant parts of the presentence report to victims as follows:
[*929]
(e) Disclosing the Report and Recommendation.
(1) Time to Disclose. Unless the defendant has consented in writing, the probation officer must not submit a presentence report
to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found
guilty.
(2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's
attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum
period. The attorney for the government shall, if any victim requests, communicate the relevant contents of the presentence
report to the victim.
387
Fed. R. Crim. P. 23(a)(2). See generally ABA Standards for Criminal Justice § 15-1.2, cmt. at 15.17 (2d ed. 1980) (concluding that
arguments in favor of requiring prosecutorial approval of jury trial waivers outweigh those against). But see Adam H. Kurland, Providing a
Federal Criminal Defendant with a Unilateral Right to a Bench Trial: A Renewed Call to Amend Federal Rule of Criminal Procedure 23(a),
26 U.C. Davis L. Rev. 309, 316 (1993) (arguing that the requirements of prosecutorial consent and court approval should be removed from
Rule 23(a)).
388
Fed. R. Crim. P. 23(a)(3); cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1196-98 (1991) (suggesting that
jury trial right might not be waivable).
389
Patton v. United States, 281 U.S. 276, 312-13 (1930) (internal quotation marks omitted).
390
United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir. 1985) (internal citation omitted).
391
In addition to the changes to Rule 32 discussed here, the Advisory Committee essentially adopted verbatim my proposals to amend Rules
32(a), 32(c)(1)(B), and 32(d)(2)(B). Compare Cassell, Proposed Amendments, supra note 4, at 886, 887, 891, with Proposed Amendments,
supra note 71, R. 32(a), 32(c)(1)(B), 32(d)(2)(B), at 10-15. There is, accordingly, no need to discuss those proposed rules here.
The Advisory Committee also declined to add my proposal that the probation officer determine whether the victim wished to have any
material included in the presentence report. See Cassell, Proposed Amendments, supra note 4, at 889. I will rely on my original article to
make the case for this particular change. See id. at 889-91
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(3) Sentence Recommendation. By local rule or by order in a case, the court may direct the probation officer not to disclose to
anyone other than the court the officer's recommendation on the sentence. 392
I further recommended that victims be given the opportunity to object to and be heard on disputed issues in the presentence
report as follows:
(f) Objecting to the Report.
(1) Time to Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections,
including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from
the report. The attorney for the government or for the victim shall raise for the victim any reasonable objection by the victim to
the presentence report.
(2) Serving Objections. An objecting party must provide a copy of its objections to the opposing party and to the probation
officer.
(3) Action on Objections. After receiving objections, the probation officer may meet with the parties and the victim to discuss
the objections. The probation officer may then investigate further and revise the presentence report as appropriate.
… .
(h) Notice of Intent to Consider Other Sentencing Factors. 393 Before the court may rely on a ground not identified either in the
[*930] presentence report or in a party's prehearing submission or in a victim impact statement, the court must give the parties
reasonable notice that it is contemplating either departing from the applicable guideline range or imposing a non-guideline
sentence. The notice must specify any ground not earlier identified on which the court is contemplating a departure or a nonguideline
sentence. The attorney for the government or for the victim shall advise defense counsel and the court of any ground
identified by the victim that might reasonably serve as a basis for departure.
(i) Sentencing.
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any
addendum to the report;
(B) must give to the defendant and an attorney for the government a written summary of - or summarize in camera - any
information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them
a reasonable opportunity to comment on that information;
(C) must allow the parties' attorneys and any victims to comment on the probation officer's determinations and other matters
relating to an appropriate sentence; and
(D) may, for good cause, allow a party or any victim to make a new objection at any time before sentence is imposed.
(2) Introducing Evidence; Producing a Statement. The court may permit the parties or the victim to introduce evidence on the
objections. If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies. If a party fails to comply with a Rule 26.2 order
to produce a witness's statement, the court must not consider that witness's testimony.
(3) Court Determinations. At sentencing, the court:
(A) may accept any undisputed portion of the presentence report as a finding of fact;
392
Cassell, Proposed Amendments, supra note 4, at 892.
393
This rule was amended in December 2006, after my earlier article was published, to change "departure" language to conform with the
new, post-Booker regime. I have accordingly changed the language quoted in the text above to conform to the current language.
DAVID SCHOEN
2007 Utah L. Rev. 861, *930
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(B) must - for any disputed portion of the presentence report or other controverted matter - rule on the dispute or determine that
a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in
sentencing; and
[*931] (C) must append a copy of the court's determinations under this rule to any copy of the presentence report made
available to the Bureau of Prisons. 394
The Advisory Committee recommended no changes to these rules. 395
Discussion:
The CVRA entitles victims to be heard on disputed Federal Sentencing Guidelines ("Guidelines") issues and, as a consequence,
to review parts of the presentence report relevant to those issues. The CVRA gives victims "the right to be reasonably heard at
any public proceeding in the district court involving … sentencing." 396 The CVRA provision (among other things) codifies
the right of crime victims to give in court what is known as a "victim impact statement." 397
The victim's right to be heard, however, is not narrowly circumscribed to just impact information. To the contrary, the right