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2007 Utah L. Rev. 861, *904

witness to whom the subpoena for documents or records is issued, 239 but there is no provision for notifying the interested party (e.g., the victim) when personal or confidential information is subpoenaed from a third party.

A recent federal case illustrates the problem under the current rules. 240 In an assault case, defense counsel used Federal Rule of Criminal Procedure 17(c) to obtain a subpoena for the victim's medical records held by the Veterans Administration. 241 The federal district judge approved the subpoena and issued an order, ex parte and under seal, directing the VA to provide defense counsel with [*905] the records. 242 Defense counsel then obtained the records, all without knowledge of the prosecutor or the victim. 243 These records included extraordinarily intimate information about the victim, including sensitive medical conditions, medications, psychiatric counseling, and the like. 244 The matter came to the prosecutor's attention - and, thus, the victim's attention - only because defense counsel "warned" the prosecutor, while attempting to negotiate a favorable plea, that taking the case to trial would cause irreparable harm to the victim because, by the time the defense attorney got finished with the victim, the victim would never trust a therapist again. 245 All this happened without any notice to the victim and without any opportunity to present arguments against disclosure of this sensitive information. 246

Allowing such subpoenas to be delivered without notice to the victim violates the CVRA's provisions guaranteeing victims the rights to be treated "with respect for the victim's dignity and privacy" as well as "with fairness." 247 With respect to the protection for dignity and privacy, allowing subpoenas to go directly to third-party custodians of records could provide no protection if the custodian is disinclined to protect the victim's privacy. Subpoenas without notice to victims also raise fairness concerns, particularly if issues implicating the right of privacy are concerned. 248

(2) Procedural Problems with the Advisory Committee Approach

To ensure protection of crime victims' rights when subpoenas for confidential information are issued, it is necessary to change the federal rules. I proposed an amendment to guarantee notice to crime victims as well as a court determination that the information was relevant at trial before victims' personal and confidential information could be subpoenaed. The Advisory Committee agreed that Rule 17 needed to be amended, but it proposed more limited protections for victims. The Committee would require court approval before any subpoena issues to a third party seeking information about a victim. However, the court would have discretion about whether to give the victim an opportunity to be heard on the subpoena; and there are no substantive limits on the kinds of information that defendants can subpoena.

Turning first to the procedural problems with the Advisory Committee proposal, the Committee would remit the entire issue of whether to issue a subpoena for personal or confidential information (and, indeed, whether to even tell a victim about such a subpoena) to the discretion of the court. The only protection the Advisory Committee offers is the requirement of a court order [*906] approving such a subpoena. The committee gives courts discretion to notify the victim or simply issue the subpoena ex parte.

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239 Fed. R. Crim. P. 17(c).

240 See E-mail from Rod Rosenstein, U.S. Attorney for the District of Maryland, to Russell Butler, Maryland Crime Victims' Resource Center, Inc. (Jan. 3, 2007), reprinted in Testimony of Russell Butler to the Federal Criminal Rules Advisory Comm. App. A (Jan. 19, 2007), available at http://www.uscourts.gov/rules/CR%20Comments%202006/06-CR-006.pdf.

241 Id.

242 Id.

243 Id.

244 Id.

245 Id.

246 Id.

247 18 U.S.C. § 3771(a)(8) (2006).

248 See infra notes 347-351 and accompanying text.

DAVID SCHOEN

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