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FED. R. CRIM. P. Rule 17(c) provides for a subpoena duces tecum for the “production of documentary evidence and of objects.” The rule further provides that “[t]he court may direct that books, papers, documents or objects designated in the subpoena be produced before the Court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon the production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.” FED. R. CRIM. P. Rule 17(c).

While the stated purpose of the rule is not discovery, US v. Carter, 15 F.R.D. 367, 369 (D.D.D. 1954); US v. Ferguson, 37 F.R.D. 6, 7-8 (D.D.C. 1965), it serves a useful purpose in expediting protracted trial in which complicated or voluminous documentary evidence is anticipated. Manual for Complex and Multi-District Litigation, at 109 (Adm. Off. US Courts 1969); Bowman Dairy Co. v. US, 341 US 214 (1951); Gevinson v. US, 358 F.2d 761 (5th Cir. 1966), cert. den., 385 US 823.

Where the defense seeks to subpoena such “documentary evidence and objections” for inspection prior to trial, a motion under Rule 17(c) for advance inspection should be filed. US v. Ferguson, 37 F.R.D. 6,8 (D.D>C> 1965), wherein the movant seeking pretrial production should make the following showing:

  • That such items are relevant,
  • That such items are not otherwise procurable by the defendant reasonably in advance of trial,
  • That the defendant cannot adequately prepare for trial without such production and inspection in advance of trial,
  • That the failure to obtain such pre-trial inspection will tend to unreasonably delay the trial,
  • That the application is made in good faith and is not intended as a general fishing expedition. See US v. Iozia, 13 R.D. 335, 338 (S.D.N.Y. 1952); US v. Beardon, 423 F.2d 805 (5th Cir. 1970), cert. den., 400 U.S. 836; US v. Leife, 43 F.R.D. 23 (S.D.N.Y. 1967).

Under the 1966 Amendments to FED. R. CRIM. P. Rule 16, these materials producible for inspection prior to trial under a Rule 17(c) subpoena duces tecum, are obtainable under the much less demanding requirements of Rule 16. However, Rule 17(c) still provides a reasonable opportunity to obtain pre-trial inspection of materials from recalcitrant defense witnesses where the Government is not in possession of such material and does not intend to call such witness at trial.

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