2007 Utah L. Rev. 861, *916

Page 40 of 78 2007 Utah L. Rev. 861, *916 court determined "this remedy does not address the Government's justifiable concerns regarding the risk of witness tampering in circumstances where there is no evidence that the life or safety of a prospective witness is in danger." 734 In other words, Jencks Act protection is not limited to situations where the government shows an actual danger to witnesses - its witness- protective qualities reach much further. +75 [*917] The lack of grounds for subpoenas seeking victim information is more evident when viewed against a legal landscape that gives defendants no right before trial to obtain even the names of government witnesses. Current law provides no basis for the pretrial disclosure of the names and addresses of government witnesses - including witnesses who are crime victims. For one thing, Rule 16, which governs discovery and inspection m criminal cases, contains no provisions for such disclosure. This omission was purposeful and mirrors the witness-protective purposes of the Jencks Act: A majority of the Conferees [that is, congressional members determining the language of Rule 16] believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contacts directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy. 34° Rule 16, therefore, along with other criminal discovery rules, "does not entitle defendants to pretrial discovery of names and addresses of prospective government witnesses or persons who have knowledge of the case." 337 By statute, capital cases are exempt from this rule. In capital cases, the accused is entitled to a copy of the indictment and a list of juror and witness names and address - but only three days in advance of the trial. 33° And notably, the same statute explicitly provides for the withholding of this information "if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person." 73° No statute authorizes similar disclosures in noncapital cases. As the Eighth Circuit noted in United States v. Hutchings, "neither [Rule 16(a)] governing information subject to disclosure by the Government in criminal cases, nor any other federal rule or statute requires the Government to supply names of potential 3 ie) 7 See id. § 3500(b); see also Fed. R. Crim. P. 26.2 (integrating Jencks Act into the federal rules). 328 United States v. Susskind, 4 F.3d 1400, 1404 (6th Cir. 1993). 329 United States v. Martinez, 87 F.3d 731, 739 (5th Cir. 1996) (quoting Palermo v. United States, 360 U.S. 343, 351 (1959)). 3 o ° United States v. Bobadilla-Lopez, 954 F.2d 519, 521 (9th Cir. 1992). 3 o ! United States v. Tarantino, 846 F.2d 1384, 1414 (D.C. Cir. 1988). 3 o 2 267 F.3d 132, 138, 145-46 (2d Cir. 2001). 3 o 3 Id. at 138-39. 3 o 4 Id. at 139. 335 See, e.g., United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988) ("Providing the defense with such a broad right of pre-trial discovery would vitiate an important function of the Jencks Act, the protection of potential government witnesses from threats of harm or other intimidation before the witnesses testify at trial."). 336 ELR. Rep. No. 94-414, at 12 (1975) (Conf. Rep.), reprinted in 1975 U.S.C.C.AN. 713, 716. 337 United States v. Laurins, 660 F. Supp. 1579, 1584 (N.D. Cal. 1987). 338 See 1/8 U.S.C. § 3432 (2006). 339 See id. DAVID SCHOEN HOUSE_OVERSIGHT_017675