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Can Fed. R. Crim. P. 17(c) Even the Playing Field?
As the pace and scale of federal white-collar prosecutions grow, an inherent inequality in the process threatens the fundamental fairness of the criminal justice system: the uneven access to information. The government typically spends years investigating with the grand jury and using subpoena powers, immunity offers, and foreign treaties to gather virtually any document or testimony it wants. Moreover, because the government has no obligation to subpoena exculpatory records, it can purposely sanitize its case, avoiding subpoenaing documents that are helpful to the defendant.
In contrast to the broad investigatory powers that the government enjoys, the defendant is at a distinct disadvantage. Though the defendant may have to produce documents in response to government subpoenas, it cannot compete with the scope of the government's pretrial gathering of evidence, and its discovery options are few. Once the grand jury returns an indictment, the government will make available to the defendant the documents it has gathered. After the court sets a trial date, the defendant can issue trial subpoenas, but the documents generally are not returnable until the first day of trial. For the typical defendant, there are few other avenues to gather information.
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