Proposed Amendments to Victims' Rights Rules for Depositions and Subpoenas

Page 23 of 52 2005 B.Y.U.L. Rev. 835, *873 number even without any showing of need. Nothing in the rule, however, would bar the defendant from requesting that information by filing an appropriate motion. The court could then determine whether any such motion had merit. !7° [*874] Rule 15 - Victims’ Right To Attend Pre-Trial Depositions The Proposal: Rule 15 should allow victims to attend any public deposition in a case as follows: (i) Victims Can Attend. A Victim can attend any public deposition taken under this rule under the same conditions as govern a victim's attendance at trial. The Rationale: Victims have the right "not to be excluded from any ... public court proceeding," except in rare cases where their testimony 178 and will be materially affected. '’7 Depositions authorized by Rule 15 are for the purpose of preserving evidence for trial, thus are effectively an extension of the trial. Victims accordingly have the right to attend such proceedings, if public, under the same conditions governing their attendance at trial. To avoid any confusion over this issue, the proposed rule change directly states that conclusion. Because victims can be excluded from the trial in certain rare situations where their testimony would be materially affected, '79 they can likewise be excluded from a deposition in those situations. The proposed rule simply applies the limitations on attending trial to the deposition setting by providing that the "same conditions" apply to the victim's attendance at the deposition. [*875] Rule 17 - Victims’ Right to Notice of Subpoena of Confidential Information The Proposal: Rule 17 regarding subpoenas should be modified to give victims notice before personal or confidential mformation is subpoenaed and to allow victims to file a motion to quash such a subpoena as follows: (h)(2) Victim Information. After indictment, 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 relevant to trial and that compliance appears to be reasonable. If the court makes such a 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. The Rationale: 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's knowledge. This issue arose recently in the Utah state 76 Cf. United States v. Wills, 88 F.3d 704, 709-10 (9th Cir. 1996) (allowing delayed disclosure of alibi witness because witness feared for safety and defendant had violent history and allowing ex parte hearing because of need to keep identity of witness from the defendant). 7 18US.CA. 3771(a)(3). 78 See, e.g., United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1995). 79 18 U.S.C.A. 3771 (a)(3), discussed infra notes 276-308 and accompanying text. DAVID SCHOEN HOUSE_OVERSIGHT_017737