Thursday, August 11, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 5

Myth No. 5:  I actually have to place the subpoena in the witness’s hand before he is bound by it.

Stories abound, many of them apocryphal, about hiding subpoenas in pizza boxes or wrapping them up in gift boxes because of the mistaken belief that you have to physically place the subpoena in someone’s hand before you can claim it has been delivered.  Actually, all that is required is that an attempt to deliver be made.  RCr 7.02(4) provides that “service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.”

Yelling to a person that you have a subpoena for them as they are bolting down an alley satisfies the “offering to deliver” requirement.  Likewise, while there is no case law to support it, an offer to deliver a subpoena made over the telephone meets the requirement.  If the offer is accepted, actual delivery of the subpoena should be attempted.  But if the offer is declined, RCr 7.02 ought to be satisfied.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West