Fifty Years After Nixon, Progress on Amending Rule 17(c)
The authors write "Commentators long have pointed to the unfairness of applying the strict test used to assess a prosecutor’s subpoena to a sitting president in United States v. Nixon, 418 U.S. 683 (1974), to run of the mill subpoenas criminal defendants utilize to seek documentary material from third parties pursuant to Fed. R. Crim. P. 17(c). See Robert J. Anello & Richard F. Albert, Escaping ‘Nixon’s’ Legacy: the Proper Standard for Rule 17(c) Subpoenas, N.Y.L.J. (April 2, 2013). Triggered by a 2022 request from the New York City Bar Association, a subcommittee of the Advisory Committee on Criminal Rules, the official body charged with addressing proposed federal rule changes, has undertaken a comprehensive review of Rule 17."
December 11, 2024 at 10:00 AM
12 minute read
Commentators long have pointed to the unfairness of applying the strict test used to assess a prosecutor’s subpoena to a sitting president in United States v. Nixon, 418 U.S. 683 (1974), to run of the mill subpoenas criminal defendants utilize to seek documentary material from third parties pursuant to Fed. R. Crim. P. 17(c). See Robert J. Anello & Richard F. Albert, Escaping ‘Nixon’s’ Legacy: the Proper Standard for Rule 17(c) Subpoenas, N.Y.L.J. (April 2, 2013). Triggered by a 2022 request from the New York City Bar Association, a subcommittee of the Advisory Committee on criminal rules, the official body charged with addressing proposed federal rule changes, has undertaken a comprehensive review of Rule 17.
As of October 2024, the Rule 17 subcommittee made public a discussion draft of an amended rule that, although falling short of all that defense counsel would desire, makes real progress in addressing some of the most pressing concerns. Most importantly, the draft rule would allow counsel to obtain most documentary materials from third parties so long as they are “material and relevant” to the preparation of the defense, dispensing with Nixon’s requirement that a defendant make the often-impossible prior showing that unseen documents are “admissible,” and enabling defendants to obtain documents that may constitute critical impeachment material but may not themselves be admissible.
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