HOUSE_OVERSIGHT_017738.jpg

Page 24 of 52

2005 B.Y.U.L. Rev. 835, *875

criminal proceedings involving the kidnapping of Elizabeth Smart. Elizabeth was kidnapped from her home in Salt Lake City,
Utah. She was found nearly nine months later with a local transient and his wife, who had taken Elizabeth at knifepoint. 180
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. 181 While the hospital refused to turn
over the requested records, the school willingly turned over the requested records without notice to the Smart family.
Elizabeth's father learned about the subpoena only after her school records had already been turned over to defense counsel.
The Smart family [*876] attorney then filed a motion to return the records to the school. Prosecutors in the case have objected
to the fact that they were not given an opportunity to file a motion to quash. 182 The matter is still under review in state court.

The problem that occurred in the Smart case under the Utah rules could also occur under the federal rules. 183 The federal rules
currently allow the witness to whom the subpoena is issued to object, 184 but there is no provision for notifying the victim
when personal or confidential information has been subpoenaed from another witness.

Serving such subpoenas without notice to the victim violates the provisions of the CVRA guaranteeing victims the rights to be
treated "with respect for the victim's dignity and privacy" and "with fairness." 185 Allowing subpoenas to go directly to third-
party custodians of records can fail to protect privacy if the custodian is disinterested or disinclined to protect the victim's
privacy. Such a scenario is not far-fetched; a third party who is subpoenaed will often have no interest in incurring legal fees to
protect a victim's rights. Even if interested, third parties may not fully understand the sensitive nature of certain victim
information. Victims may also have important statutory rights to protect. In the Elizabeth Smart case, for example, the school
may have violated the Family Educational Rights and Privacy Act by turning over private information about Elizabeth. 186

Subpoenas served without notice to victims may also raise constitutional concerns. 187 It is well settled that a right to privacy
is implicitly incorporated within the protections guaranteed under the [*877] United States Constitution. The Supreme Court
"has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the
Constitution." 188 Supreme Court precedent establishes two lines of privacy interests: (1) the "individual interest in avoiding
disclosure of personal matters" and (2) "the interest in independence in making certain kinds of important decisions." 189 In
essence, the right to privacy includes an individual's interest in making certain decisions that fundamentally affect his or her
person "free from unwarranted governmental intrusion." 190 In light of interests such as these, several courts have held that
crime victims' records - such as rape crisis counseling records - are not subject to subpoena. 191

180 See generally Ed Smart & Lois Smart with Laura Morton, Bringing Elizabeth Home: A Journey of Faith and Hope (2003).
181 Stephen Hunt, Defense Blasted for Obtaining Smart's School Records, Salt Lake Trib., Jan. 14, 2005, at B2.
182 Pat Reavy, Quash Smart Subpoenas, DA Says, Deseret Morning News, Feb. 1, 2005, at B3.
183 See Letter from Gregory G. Skordas, attorney for Elizabeth Smart, to Judge Susan Bucklew (May 23, 2005) (on file with author)
(proposing changes to the federal rules to avoid recurrence of this problem in federal court).
184 Fed. R. Crim. P. 17(c).
185 18 U.S.C.A. 3771(a)(8).
186 Pat Reavy, Elizabeth Wants Records Returned, Deseret Morning News, Jan. 15, 2005, at B3; see 20 U.S.C. 1232g (2000) (establishing
rights of privacy in educational records).
187 See generally Wendy J. Murphy, Using the Federal Courts To Make State Courts Respect Victims' Rights, 9 Lewis & Clark L. Rev.
(forthcoming 2005) (discussing federal constitutional rights of privacy for victims' confidential records).
188 Roe v. Wade, 410 U.S. 113, 152 (1973).
189 Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
190 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); see also Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977).

DAVID SCHOEN

HOUSE_OVERSIGHT_017738