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

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 4

Myth No. 4: I can subpoena children to court by serving EITHER parent with a subpoena.

Not exactly.  RCr 7.02(2) provides in part that “[a] subpoena for an unmarried infant shall be served upon the infant’s resident guardian if there is one known to the party requesting it, or, if none, by serving either the infant’s father or mother within this state or, if none, by serving the person within this state having control of the infant…”  On those occasions where the parents are divorced and custody is granted to one parent, the defense lawyer must serve the subpoena on the custodial parent, not the non-custodial parent. 

The rule specifies that either parent can be subpoenaed only where there is no known “resident guardian.”  If you serve your own client with the subpoena, and he does not have custody of the children, you will not prevail when the children do not show up and you have to prove to the court proper service of the subpoena in order to get a continuance or other remedy.  Certainly, the non-custodial parent qualifies as the “resident guardian” when the child is visiting pursuant to the decree of custody; but when the child is not visiting the resident guardian will be the custodial parent.  To avoid any doubt, subpoena both parents.

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

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 3

Myth No. 3:  If I subpoena documents to the Courthouse, but the witness drops them off at my office by mistake, or out of convenience, I can go ahead and look at them and then decide if I want to go ahead and file them, or just throw them away.

Once subpoenaed, all parties have a right to look at the documents.  KBA E.423.  Failure to give notice to opposing counsel violates RPC 3.4(a) by obstructing the party’s access to evidence.  If by chance or by courtesy the custodian delivers them to your office, you should follow one of two paths, depending upon the circumstance.

Prior Court Approval:  If the documents are being produced after a hearing has already been held and a court order has been issued allowing you to have them, you can open the file and look at the documents.   You still must file the contents in the court file, however, as it is information produced pursuant to a court order, and available to all parties and the court.  Throwing them away risks a destruction of evidence charge. 

If it is critical that you examine your client’s medical records, social security records or other documents relating to him, without incurring the obligation of having to turn them over, use a release.  Then you only have to turn over those documents you intend to introduce at trial, or which you show to an expert you expect to call live at trial, and that is only if there is an obligation of reciprocal discovery.

No Prior Court Approval.  If there has not been a hearing concerning the discoverability of the documents, and the Court has not otherwise ordered that you are entitled to see them, then you should not look at the documents, but should place the sealed envelope into the court file and schedule a hearing, asserting your right to look at the documents.  If you look at the contents, or publish them to someone else, only to find out later that the documents were privileged and should have been revealed to you, if at all, only after an in camera inspection, you could open yourself up to sanctions for abuse of process and place at risk your ability to use the documents in trial.

KRS 422.305 specifically governs subpoenas of medical records, and KRS 422.330 specifically provides that the psychiatrist-patient privilege is to remain intact.  Hence, subpoenaing a person’s mental health records and looking at them without prior court permission can subject the attorney to contempt of court or a finding of misconduct.

Other statutes preserve confidentiality or privacy interest, even while allowing the confidential or private records to be subpoenaed.  One example of the risks associated with using such subpoenaed documents prior to court authorization occurred recently in the defense of a “doctor shopping” case tried by a colleague of mine.  “Doctor shopping” refers to an alleged illegal attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner licensed to dispense drugs, in violation of KRS 218A.140.    The “doctor shopper” theoretically goes from doctor to doctor to doctor attempting to get multiple prescriptions for the same drug in a short period of time.

To combat this practice, the Cabinet of Human Resources maintains an electronic system for monitoring controlled substances, whereby each practitioner who prescribes or dispenses drugs provides data including the name and address of the person to whom each prescription was given.  The Cabinet is authorized to provide this data to any state, federal or municipal officer whose duty is to enforce the drug enforcement laws of Kentucky or the United States, and who is engaged in a bona fide specific investigation involving a designated person.  KRS 218A.202.  The drug enforcement officer can then use the data obtained to obtain a warrant, effect an arrest, procure an indictment, or perform any other legitimate police task.

In my colleague’s case, the authorities used a subpoena to obtain the compilations of data from the Cabinet’s database.  However, upon obtaining the data, the authorities rushed into the grand jury room, presented the results of the data, and procured indictments for doctor shopping against his client.  This was a misuse of the materials and an abuse of the statute, which provides in pertinent part:  “A person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except by order of a court of competent jurisdiction.”  Because the government had not sought a court order prior to publishing the information to a grand jury the data was suppressed as illegally obtained evidence.

The moral is, just because you got something by a subpoena, it does not mean you can use it anyway you want; other rules of privilege or confidentiality may limit the usage.

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

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 2

Myth No. 2:  I can subpoena documents directly to my office.

No.  Technically, there is no such thing as subpoenaing documents.  RCr 7.02(3) states that you may command “the person to whom it is directed to produce the books, papers, documents or other objects designated therein.”  Even though it is the documents you desire, and you could care less about whether the person shows up or not, it is the person under the order of the subpoena, not the documents.  (Hence the phrase subpoena duces tecum, which essentially translates into “bring the documents with you.”) Since it is impermissible to subpoena a person to your office for any purpose (again, other than for a court-ordered deposition), it follows that you cannot command a person to come to your office bringing documents. 

KBA E-423 provides that “subpoenaed documents may be produced only before the court in connection with a judicial proceeding or properly authorized deposition.”  There is an exception for medical records (KRS 422.305), which allows documents to be produced “in lieu of attendance.”

There are a couple of ethics opinions out there relating to subpoenaing records for use in divorce proceedings where the attorneys were mildly sanctioned for subpoenaing their own client’s documents to their office without serving copies of the subpoenas on  the other side.  See Megibow v. KBA, 173 S.W.3d 618 (Ky. 2005)(“The use of subpoenas to obtain documentary evidence or tangible things without an accompanying notice of deposition or notice of hearing or trial has been a recurring problem.  Evidently, some practitioners are unaware that CR 45.01 prohibits such use of subpoenas”) and Munroe v. KBA, 927 S.W.2d 839 (Ky. 1996).  Keep in mind, this was their own client’s documents!  They could have been gotten by release without ANY notice to the other side.  But because a subpoena was used, it was an ethical violation.

The proper way to subpoena documents is to direct the custodian of records to deliver the documents to the courthouse at a hearing, or into the court file.

In Grand Jury proceedings, Commonwealth Attorneys can subpoena people to the Grand Jury for purpose of testifying or providing documents without having to appear live.  The Grand Jury may excuse full or partial compliance with the command of the subpoena or subpoena duces tecum.  Stengel v. KBA, 162 S.W.3d 914 (Ky. 2005).  But the Prosecutor’s subpoena power is not limitless!  See Bishop v. Caudill, 87 S.W.3d 1 (Ky. 2002) for a list of five things the Commonwealth cannot use the Grand Jury for:  (1) add new parties to an already existing indictment; (2) add new charges to an already existing indictment; (3) amend the old indictment; (4) use as a substitute for discovery depositions; or (5) prepare a case for trial.  “[I]f the purpose of subpoenaing [witnesses] is to use the grand jury proceedings as a guise for trial preparation, the subpoenas must be quashed.”  Bishop, supra.

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

 

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