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2005 B.Y.U.L. Rev. 835, *877

The proposed new rule protects victims' statutory and potential constitutional interests in two ways. First, the court is required to make a preliminary determination that the subpoena seeks information relevant at trial and that compliance appears to be reasonable. This is consistent with the trial court's existing power to quash unreasonable subpoenas, including subpoenas directed at crime victims. 192 Second, if the court makes a preliminary determination that the subpoena is appropriate, the victim would then receive notice of the subpoena. To avoid harassment, the notice would be provided either through the victim's own attorney or, more commonly, through the prosecutor.

The proposed rule makes no substantive change in the right of the party to obtain appropriate information through a subpoena. Instead, it merely changes procedures to ensure victims are treated fairly by having the opportunity to file a motion to quash where such [*878] a motion is appropriate. The court is then authorized to grant the victim's motion to quash under the same standards that already apply to other motions to quash - where compliance would be "unreasonable or oppressive." 193

The proposed change does not interfere with the legitimate interests of the government or defendants. The change will not hamper government investigations because it applies only to subpoenas issued after indictment. Before indictment, a victim's privacy is protected through grand jury secrecy. After indictment, the only legitimate purpose for a subpoena by either the government or the defendant is to obtain testimony or evidence for trial or similar court hearing. Rule 17 does not permit a subpoena for discovery purposes, 194 although upon a proper showing a party can obtain pre-trial access to materials. 195 Therefore, when challenged by a victim on a motion to quash, the party seeking the evidence will prevail upon a proper showing that the subpoena is appropriate. The only change made by the rule, then, is to require preliminary screening by the court when confidential information is involved and give the victim the opportunity for court review in cases where legitimate interests are at stake. Constitutional interests in privacy and the victim's right to be treated "with fairness" require nothing less.

Rule 18 - Victims' Interests Considered in Setting Place of Prosecution

The Proposal:

Rule 18 should be amended to require the court to consider the convenience of victims in setting the place of prosecution as follows:

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.
[*879]

The Rationale:

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191 See, e.g., State ex rel. Romley v. Superior Courts, 836 P.2d 445, 451-52 (Ariz. Ct. App. 1992) (crime victim had the right to deny defendant access to medical records); Commonwealth v. Wilson, 602 A.2d 1290, 1296-97 (Pa. 1992). See generally Tera Jckowski Peterson, Distrust and Discovery: The Impending Debacle in Discovery of Rape Victims' Counseling Records in Utah, 2001 Utah L. Rev. 695; Anna Y. Joo, Note, Broadening the Scope of Counselor-Patient Privilege To Protect the Privacy of the Sexual Assault Survivor, 32 Harv. J. on Legis. 255 (1995).

192 See, e.g., Amsler v. United States, 391 F.2d 37, 51 (9th Cir. 1967) (upholding trial court's decision to quash subpoena directed to kidnapping victim's father for lack of materiality).

193 See Fed. R. Crim. P. 17(c)(2).

194 See generally United States v. Nixon, 418 U.S. 683, 689 (1974).

195 See id. at 699.

DAVID SCHOEN

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