Today, the standard for subpoenas under Rule 17(c) of the Federal Rules of Criminal Procedure, espoused in United States v. Nixon, provides for limited, almost useless, pretrial subpoena power for criminal defendants.  When subpoenaing a third party, a defendant must show (1) relevancy, (2) admissibility, and (3) specificity for documents that they have not yet gained access to.  This narrow scope of Rule 17(c) has long engendered criticism from judges, scholars, and practitioners alike.  Yet, Rule 17(c) has not been changed, either by judicial opinion or amendment.

Following years of criticism, the Advisory Committee on Criminal Rules (“Advisory Committee”) is currently considering whether and how pretrial subpoena power under Rule 17 should be expanded.  This Note examines how the Advisory Committee should change Rule 17(c).  In light of a recent change to government policy that recommends that prosecutors collect less information during pretrial investigations, this Note argues that Rule 17(c) should be expanded to allow parties to subpoena documents and other items that are material and relevant to preparing the prosecution or defense and that requested documents need not be admissible.  Further, this Note recommends settling existing jurisdictional splits and amending Rule 17 to explicitly require parties to file a motion with the court for issuance of a subpoena but allow ex parte proceedings upon a showing of good cause.