Christine Wong · December 2013
82 GEO. WASH. L. REV. 247 (2013)
As federal law enforcement agencies take on greater roles in state investigations, criminal defendants in state courts are increasingly forced to subpoena federal agencies for evidence necessary to raise a defense. However, the state defendant seeking information from a federal agency faces three major obstacles: (1) sovereign immunity; (2) derivative jurisdiction; and (3) federal “housekeeping” regulations. Despite the existence of a constitutional right to compulsory process, the application of these legal doctrines effectively bars enforcement of state subpoenas. The resulting injustice devalues defendants’ constitutional rights and undermines confidence in the fairness of the judicial system as a whole.
Although courts recognize the evolution of law enforcement practices, current law does not leave many options for judges or defendants. Existing “remedies” include time-consuming Administrative Procedure Act litigation or outright dismissal of prosecutions by state judges, neither of which is an effective or proper remedy for the state defendant looking to enforce her Sixth Amendment rights. This Note proposes an amendment to the federal officer removal statute that will eliminate derivative jurisdiction for cases removed under that section. This amendment will allow district courts to exercise the same jurisdiction over federal agencies that they would exercise in cases originally filed in federal court. In practice, federal judges will be permitted to consider defendants’ constitutional rights on the merits, and defendants will no longer face an absolute bar to subpoenas of federal agencies.
