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2007 Utah L. Rev. 861, *914

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 state-created 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).

DAVID SCHOEN

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