Page 35 of 78 2007 Utah L. Rev. 861, *910
crime victim to notice of that proceeding 77! and to an opportunity to attend that hearing, unless the victim's testimony would clearly be materially affected from attending the hearing. *’* 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." 7/3 For example, a defense subpoena to the Department of Motor Vehicles for address information could very directly jeopardize a victim's safety. 774 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. 77>
(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." 77°
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." 7”” 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. 77° 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 Td. § 3771(a)(2). 272 Td, § 3771(a)(3). 273 Td. § 3771(a)(1).
274 Tn 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).
DAVID SCHOEN
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