New York Federal Criminal Practice Blog
February 17, 2008

In Important Decision on Defense Discovery Rights, SDNY Judge, Rejecting Nixon Standard, Authorizes Defense Subpoena to BOP for Recordings of Phonecalls of Cooperating Witnesses

It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them.  As the judge points out in United States v. Tucker, 05 CR 711 (SAS), 2008 WL 361127 (S.D.N.Y. February 7, 2007), "the government has far more opportunity to obtain evidence than does a criminal defendant," something, she points out, that is an example of the lack of symmetry in the criminal justice system, where "defendants will virtually always be outmatched in investigatory resources, funds, and time to prepare for litigation." 

In Tucker, the government had disclosed to the defense a redacted excerpt of a cooperating witness's phone call, which the defense maintained indicated that the witness may have been offered some inducement for his testimony. The defense now sought court authorization under Federal Rule of Criminal Procedure 17(c) for a subpoena ordering the BOP to produce all recordings of all telephone conversations involving each of the incarcerated cooperating witnesses, so that the defense could gather information on any inducements offered to any witnesses.  The government moved to quash.

The court granted the defense request, modifying it slightly to encompass calls made after the witnesses' initial contact with the government, and exempting calls between the witnesses and their attorneys.  The decision also includes an interesting review of the methods of discovery available to both sides in a criminal prosecution, and cases addressing the scope of Rule 17(c).

What is most notable in Tucker, is the court's rejection of the Nixon standard in the context of defense subpoenas issued to non-parties.  That standard, announced in United States v. Nixon, 418 U.S. 683 (1974), requires that the information sought in a Rule 17(c) subpoena must be relevant, admissible and specific, and because of the requirement of specificity, holds that a Rule 17(c) subpoena may not be used for a "general fishing expedition."  In Tucker, the court held that the Nixon standard should be confined to the situation where the government issues a Rule 17(c) subpoena, or where the defense issues a Rule 17(c) subpoena to the government. 

Instead of the Nixon standard, the less stringent Tucker standard requires simply that "the request is (1) reasonable, construed as 'material to the defense,' and (2) not unduly oppressive for the producing party to respond."  Because the Tucker standard requires a threshold showing of materiality (which was satisfied here by the defense's "articulable suspicion" that the information may be material to the defense), the court emphasized, she was not turning Rule 17(c) into a "broad discovery device."  Rule 17(c) subpoenas "must be reasonably targeted to ensure the production of material evidence."

Given the paucity of discovery mechanisms available to defendants in criminal cases, this is a very important decision expanding a criminal defendant's right to discovery. 

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