Tuesday, June 14, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 1

DPA General Counsel Scott West has updated his classic article The Subpoena: Ethical Use and Unethical Myth-Use (click link on that title for complete article) for a presentation at the DPA Annual Conference on June 15.   Over the next several weeks, The Advocate will post the top ten myths about subpoena's in Kentucky with Scott West's comments.

Myth No. 1:  I can subpoena people to my office.

With the exception of subpoenas to court-ordered depositions, no, you cannot subpoena persons to places to your office or anywhere outside the courtroom.  Rule 7.02(1) provides in pertinent part: “Subpoenas are issued by the clerk.  It shall state the name of the court and title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.”

The rule specifically requires the title of the proceeding if there is one to be included on the form subpoena.  The proceeding may be a court or jury trial, a suppression hearing, or Daubert hearing, or any other type of proceeding.  If the proceeding does not have a title, that’s okay – but the rule clearly implies that there MUST be a proceeding.

Civil Rule 45, which governs subpoenas in civil cases, is more explicit.  CR 45.01 provides that “[s]ubpoenas shall not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial.”  This provision lends support to the implication of RCr 7.02 Since RCr 13.04 applies the Rules of Civil Procedure in a criminal case so long as they are not superseded by or inconsistent with the Rules of Criminal Procedure.  In this instance, CR 45.01 would be interpretive, not inconsistent, with the criminal rule.

KBA ethical opinions E-423, E-140 provide:  “Use of a subpoena for ex parte investigation is strictly prohibited.”

Note also Hilliard v. Commonwealth, 158 S.W.3d 758, 764 (Ky. 2005), quoting U.S. v. LaFuente, 991 F.2d 1406, 1411 (8th Circ. 1993):  “The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys."  The rule against subpoenaing witnesses to places outside the courtroom applies equally to the government.  Neither the Commonwealth Attorney nor the County Attorney have a superior right to subpoena persons to places outside away from the courtroom.  Yet, there is an abundance of anecdotal evidence of prosecutors doing just that.  This writer is personally aware of one Commonwealth Attorney being reprimanded by a Circuit Judge for subpoenaing witnesses to his office. 

On a different occasion, I witnessed a hearing where the issue was whether the Commonwealth Attorney could subpoena reluctant witnesses to his office.  (I do not know whether he had filed a motion asking for permission in advance, or whether he had attempted to subpoena a witness and defense attorney was objecting.) At the hearing, he implored the Court to allow him to use the subpoena for that purpose. “There has to be some way I can make them talk to me!”

The defense attorney replied “Your Honor, I have spent the last 25 years having doors slammed in my face by witnesses who didn’t want to talk to me, and Lord willing, I’ll have 25 more.”  (At that moment, I felt a special kinship to that defense attorney.)

I do not know how that hearing turned out -- the Court took it under advisement – but the lesson to me was clear.  If you want to talk to a witness and the witness will not cooperate, move for a deposition or find another lawful way to interview the witness.  Just do not subpoena him to your office.

Contributed by Scott West