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2007 Utah L. Rev. 861, *917

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 And even if the Ninth Circuit's approach was valid at the time Armstrong was decided, such an approach is no longer valid in light of the CVRA.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

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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 non-capital 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).

DAVID SCHOEN

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