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Page 30 of 78
2007 Utah L. Rev. 861, *903

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
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