Ed Imperatore and Carrie Cohen authored an article for the New York Law Journal discussing a recent decision by U.S. District Judge Jed S. Rakoff of the Southern District of New York endorsing an expansive view of defense subpoena power, forging a split in authority within the Second Circuit.
"Defense lawyers should embrace United States v. Weigand in their efforts to obtain evidence from third parties," the authors wrote. "As Judge Rakoff recognized, the strongest arguments in favor of adopting the defense-friendly standard [in Weigand and United States v. Tucker] are the following: it (1) hews closely to the text of Rule 17(c), (2) reflects modern principles of liberal discovery, and (3) helps to balance the discovery powers of the government and the defense. More broadly, the Tucker/Weigand standard is consistent with the objective articulated in United States v. Nixon of achieving 'full disclosure of all the facts' and facilitates presenting a full defense."
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