Critique of Ex Parte Subpoenas and Proposed Rule 17 Amendments

Page 32 of 78 2007 Utah L. Rev. 861, *906 Subpoenas issued ex parte are plainly unfair to victims. When a victim's personal or confidential information is at stake, it is truly hard to understand how anyone could argue that allowing it to be tumed over to the defense without any opportunity to be heard treats victims "fairly," as the CVRA requires. The Advisory Committee does not clearly explain when a court should proceed ex parte and when it should follow the standard practice of giving notice to the victim as the affected party. The only justification the Advisory Committee gives for the extraordinary step of allowing ex parte procedures is to avoid forcing "premature disclosure of defense strategy to the government." 74 But when a victim's confidential information is at stake, some interest in concealing "strategy" from the opposing party can hardly be sufficient grounds for ex parte issuance of a subpoena. As the Supreme Court has bluntly explained, our adversary system is not "a poker game in which players enjoy an absolute right always to conceal their cards until played." 7>° Allowing ex parte procedures violates basic principles of fairness. The American Bar Association raised this point quite effectively in its comments to the Advisory Committee on Rule 17. 7°! The ABA explained that Canon 3(B)(7) of the Model Code of Judicial Conduct provides in pertinent part that "[a] judge shall accord to every person who has a legal interest in the proceedings, or that person's lawyer, the right to be heard according to law." 7°? Rule 17 would allow that precept to be violated by denying some victims a chance to heard before compromising their legal rights to confidentiality in personal and confidential information. Similarly, the ABA noted that its Model Code of Judicial Conduct generally forbids courts from considering ex parte communications. 73 Rule 17, of course, flies in that face of that well-established prohibition. While the Model Code of Judicial Conduct is not binding on federal courts, its principles have generally been viewed as instructive. 74 Defense attorneys would also be treading on ethical thin ice under proposed Rule 17. The Model Rules of Professional Conduct and the ABA Criminal Justice Standards both provide that "in representing a client, a lawyer shall not ... use methods of obtaining evidence that violates the legal rights of ... a [third] [*907] person." 7°> When defense attorneys obtain ex parte subpoenas for a victim's confidential information, they may very well violate the rights of the victim, such as the right to confidentiality preserved in the doctor-patient privilege or psychotherapist privilege. For reasons such as these, the federal rape shield rule (among other examples) properly requires defendants to always provide notice to the court - and to the victim - before seeking to introduce evidence about a rape victim's prior sexual history. 7°° The rape shield rule does not create any exception for situations that might lead to disclosure of defense "strategy." Rule 17 should follow the same approach and insure that victims always have an opportunity to contest disclosure of their personal and confidential information in court. Any defense interest in withholding strategy must give way to facially neutral rules. Both my proposed amendment and the Advisory Committee's proposed amendment apply evenhandedly to both the prosecution and the defense. Thus, the amendments are not designed to force disclosure of defense strategy, as they may also force disclosure of prosecution strategy 49 Proposed Amendments, supra note 71, R. 17, at 8 (emphasis added). 20 Williams v. Florida, 399 U.S. 78, 82 (1970) (citing William J. Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L.Q. 279, 292). 21 Letter from Robert M.A. Johnson, Chair, ABA Criminal Justice Section, to Hon. Peter G. McCabe, Sec'y of the Comm. on Rules of Practice and Procedure (Feb. 1, 2007), available at www.uscourts.gov/rules/CR%20Comments %202006/06-CR-028.pdf- 252 Td. (citing Model Code of Jud. Conduct Canon 3(B)(7) (2004)). 253 Ig. 254 See Debra Lyn Bassett, Recusal and the Supreme Court, 56 Hastings L.J_ 657, 678-79 (2005) (citing United States v. Will, 449 U.S. 200, 211-12 & n.12 (1980); Hanrahan v. Hampton, 446 U.S. 1301, 1301 (1980)). 255 Model R. Prof] Conduct 4.4(a) (2007); see also ABA Criminal Justice Study, Standard 4-4.3 (1993). 256 See Fed. R. Evid. 412(c)(1)(B). DAVID SCHOEN HOUSE_OVERSIGHT_017667