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2007 Utah L. Rev. 861, *911

of trial and that failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." 279

Because of this governing law, I proposed that Rule 17 should itself identify restrictions on a defendant's ability to subpoena confidential information. My proposal incorporates specificity, relevancy, and admissibility components - conforming with, rather than altering, existing law. My current proposal 280 requires the information be specifically described and admissible at trial - and it bars evidence sought for impeachment purposes only. In contrast, the Advisory Committee seemingly enlarges the substantive rights of defendants by failing to reference even a single Nixon factor in its proposal. Thus, unless a court takes it upon itself to ensure the relevancy, specificity, and admissibility of the subpoenas, [*912] the Advisory Committee proposal might provide the defendant with license to conduct the very "fishing expedition" that Nixon forbids.

The proposed Advisory Committee Note adds to this confusion. The Note indicates that in considering whether to issue the subpoena, the court should consider "the relevance of the subpoenaed material to the defense." 281 But this is an overly broad formulation. The court should only consider the relevance of the material to the defense at trial, since this is the only permissible basis for a subpoena.

Current law clearly limits Rule 17 subpoenas to evidence that is admissible at trial. 282 The reason for Nixon's limitations of relevance, admissibility, and specificity is that subpoenas are "not intended to provide a means of discovery for criminal cases" but only to "expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials." 283 With regard to admissibility, Nixon explained that "generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial." 284 In other words, documents sought for the narrow purpose of impeachment are not evidentiary for the purposes of Rule 17. 285 In Nixon, only because the prosecutor made a sufficient preliminary showing that the subpoenaed tapes contained "evidence admissible with respect to the offenses charged in the indictment" and that the evidence could be validly used as nonimpeachment evidence, did the Court find the evidence to be subpoenaable. 286

Courts apply Nixon's admissibility test strictly, rejecting, for example, subpoenas for hearsay evidence that would be inadmissible at trial. 287 The cases have recognized that broad subpoenas run afoul of these limitations - including subpoenas seeking information about crime victims. 288 For example, in United States v. Hang, the Eighth Circuit affirmed the district

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279 Id. at 699-700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)).

280 My earlier proposal specifically required that no subpoena would issue "without a finding by the court that the information is relevant to trial." Cassell, Proposed Amendments, supra note 4, at 875 (emphasis added). In view of the importance of the Nixon factors, it now seems desirable to spell them all out, as my current proposal does.

281 Proposed Amendments, supra note 71, R. 17, at 8.

282 Nixon, 418 U.S. at 699-700.

283 Id. at 698-99 (emphasis removed).

284 Id. at 701.

285 See United States v. Cherry, 876 F. Supp. 547, 553 (S.D.N.Y. 1995).

286 Nixon, 418 U.S. at 700-702.

287 See, e.g., Cherry, 876 F. Supp. at 553 (rejecting subpoenaed prosecutors' investigative files as inadmissible hearsay).

288 Cf. United States v. Alexander, No. 94-10568, 1996 U.S. App. LEXIS 1662, 16-17 (9th Cir. Jan. 18, 1996) (quashing subpoenaed records from rape center because nothing warranted disclosure prohibited by Victims of Crimes Act); United States v. Cherry, No. 90-5784, 1991 U.S. App. LEXIS 18192, 11-13 (4th Cir. Aug. 12, 1991) (quashing subpoenaed police files because they were in part irrelevant); Amsler v. United States, 381 F.2d 37, 51 (9th Cir. 1967) (holding subpoena of Frank Sinatra, regarding ransom money, an oppressive and unreasonable use of the court).

DAVID SCHOEN

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