Harvard Civil Rights-Civil Liberties Law Review, Vol. 19, No. 2 (Summer 1984), pp. 349-395

Abstract

This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from a designated official for its release. Part II of the Article will identify inconsistent recent appellate court decisions which have assessed the validity of the regulations and, more particularly, the validity of the exclusion of a government witness when the defendant has not complied with the regulations. Part III will analyze the regulations and their background in greater depth, relating them to the underlying "official information" privilege, which, when included in proposed Rule 509 of the Federal Rules of Evidence, was rejected by Congress in the wake of Watergate. Finally, Part IV critiques the regulations as applied in federal criminal cases and concludes that such application is inconsistent with the due process and compulsory process clauses of the fifth and sixth amendments, the Federal Rules of Evidence, and the Federal Rules of Criminal Procedure.

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