Legal analysis of ex parte subpoenas and victim rights under the CVRA

Page 34 of 78 2007 Utah L. Rev. 861, *908 for disclosing the fact of the subpoena to the victim, because of both ethical and legal considerations. 7°? Thus, the Advisory [*909] Committee's use of ex parte procedures will only randomly protect defense strategy from disclosure. The impossibility of truly ex parte procedures for Rule 17 subpoenas to third-parties has been recognized by several court decisions. For example, in United States v. Urlacher, the defendant sought to use Rule 17 to subpoena financial, family, and employment information concerning an individual believed by the defendant to be the government's main witness at trial. 7° The court declined to approve the subpoena ex parte, explaining that the custodian of the records "has a Rule 17(c) motion to quash or modify, and one cannot easily imagine that such a motion should be heard and decided in secret ... and hidden from the opposing party and the public." 7°* The court went on to explain the constitutional difficulties presented by such an approach, given that the First Amendment creates a general public right of access to court proceedings. 7° Even if there is some arguable defense interest in not disclosing "strategy," that interest must be subordinated to the compelling victim interests that are at stake. My proposal (and the Advisory Committee's) applies to third-party subpoenas directed to the victim's personal or confidential information. Congress has commanded that victims must not only be treated with "fairness," but also "with respect for the victim's dignity and privacy." 7° Protecting dignity and privacy requires a hearing when confidential information is at stake. The Advisory Committee Note on its proposal does obliquely deal with this issue in a way that misstates the relevant legal landscape. The Note accompanying the proposed Rule 17 amendment states vaguely that, "in exercising its discretion [about whether to give notice of a request for a subpoena], the court should consider the relevance of the subpoenaed material to the defense, whether giving notice would prejudice the defense, and the degree to which the subpoenaed material implicates the privacy and dignity interests of the victim." °°’ This imprecise listing of discretionary factors misstates the law. The court is not required to "consider" some victim-related factors and then make a discretionary decision. The CVRA commands that victims have "the right" to "be treated ... with respect for the victim's dignity and privacy." 7° Thus, if withholding notice to a victim fails to respect the victim's dignity and privacy (as I believe it invariably will), then the court must give notice - end of story. 7°? The CVRA flatly directs: [*910] "In any court proceedings involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described [in the CVRA]." 270 The Advisory Committee Note is also an incomplete listing of the victim's rights that are implicated in decisions about issuing subpoenas. From a procedural perspective, if the court holds a hearing on whether to issue the subpoena, the CVRA entitles a 262 Cf. 42 U.S.C. § 254b(k)(3)(B) (2006) (enforcing confidentiality of medical records). 263 136 F.R.D. 55, 551-57 (W.D.N.Y. 1991). 264 Td. at 556. 265 Td. at 556-57. But cf. United States v. Beckford, 994 F. Supp. 1010, 1027 (E.D. Va. 1997) (noting that Urlacher states the majority rule, but concluding that ex parte procedures should be permitted in "exceptional circumstances"). 265 18 US.C. § 3771(ay(8). 267 See Proposed Amendments, supra note 71, R. 17, at 8. 208 18 U.S.C. § 3771(a)j(8). 269 In theory, the Advisory Committee could argue that the CVRA is unconstitutional in this respect and therefore must give way. But the CVRA is presumed to be constitutional and the caselaw strongly supports the Act. See, e.g., Wardius v. Oregon, 412 U.S. 470, 475 (1973) (finding no constitutional barrier to reciprocal discovery rules that act as a "two-way street"); cf. Forsythe v. Walters, 38 F. App'x 734, 737 (3d Cir. 2002) (finding that "application of the CVRA does not exact a punishment and therefore the CVRA can not violate the Ex Post Facto Clause"). 270 18 U.S.C. § 3771(b)(1) (emphasis added). DAVID SCHOEN HOUSE_OVERSIGHT_017669