2007 Utah L. Rev. 861, *896

Page 25 of 78 2007 Utah L. Rev. 861, *896 Even where the defendant can establish need, it may be the case that victims’ safety interests will prevail. For example, in United States v. Wills, the district court allowed the government to delay the disclosure of the name of a witness because the witness feared for her safety and the defendant had a violent history. !°* On appeal to the Ninth Circuit, the defendant sought reversal of his conviction, arguing that "the district court abused its discretion in finding good cause to permit the government to withhold [the witness] from its alibi rebuttal list and witness list." 19? Before his trial, Wills had provided the government with the name of one alibi witness. In response, the government filed a sealed, ex parte application under Rule 12.1(e) seeking an exception to its obligation to disclose its alibi rebuttal witness to the defense. !°4 Based on the defendant's violent history and apparent ability to "induce others to commit crimes on his behalf," the court allowed the government to delay the disclosure of the witness. !?> The Wills court noted that two other circuits had addressed or commented on the issue. The Sixth Circuit, in United States v. Causey, held that good cause existed to justify the nondisclosure of a witness to the defense. !°° The Causey court found evidence in the record indicating that witnesses were being threatened in an attempt to prevent them from testifying. !°7 "In such a situation, the physical safety and protection of potential witnesses constitutes a proper consideration of a trial court in determining whether good cause exists to justify nondisclosure of witnesses to opposing counsel and thus noncompliance with Rule 12.1." 198 Similarly, in United States v. Elizondo, the Seventh Circuit cited Causey for the proposition that the protection of potential witnesses could justify postponing disclosure. '°? Following the reasoning of the Sixth and Seventh Circuits, Wills held that the "district court did not abuse its discretion in finding that good cause existed to authorize the Government to delay disclosure of [the witness's] identity." 7°° The Advisory Committee might respond to these criticisms of its proposal by pointing to discretionary language; the proposed. rule states that the court "may" order production of the evidence or the fashioning of an alternative procedure. But given the obvious safety concerns that attend disclosure of the victim's home [*897] address to the defense, the Advisory Committee should exercise extreme caution. More important, courts have no discretion to ignore the commands of the CVRA. Courts must always protect a victim's right "to be reasonably protected from the accused." 7°! The proposed rule does not faithfully implement that instruction. Indeed, the safety problems attendant to the Advisory Committee's proposal are heightened by fact that disclosure is authorized to "the defendant or the defendant's attorney." It does not take a great deal of imagination to foresee problems arising from telling criminal defendants where the victims who will testify against them live. In fairness to the Advisory Committee, it was only tracking language used elsewhere in Rule 12. 7°? All of Rule 12 should be redrafted to require disclosure only to defense counsel, rather than to the defendant personally. 7° 9 88 F.3d 704, 710 (9th Cir. 1996). © 3 Id. at 708 (internal quotation marks omitted). %4 Id. at 709. % Id. at 710, 96 834 F.2d 1277, 1281 (6th Cir. 1987) © 7 Id. at 1282. 8 Td. 9 920 F.2d 1308, 1314 (7th Cir. 1990). 200 88 F.3d at 710. 201 18 U.S.C. § 3771 (a)(1) (2006). 202 See, e.g., Fed. R. Crim. P. 12(a)(3). 203 Of course, if the defendant were acting pro se, then he would be counsel in the matter. See Faretta v. California, 422 U.S. 806 (1975). DAVID SCHOEN HOUSE_OVERSIGHT_017660