According to this rule, all witnesses must receive established witness fees. This is a derogation from the previous Law, G.L.c. 277, § 69, which required prosecution witnesses to appear without payment, unless the court ordered the payment of their fees and expenses. (Rule 16 has its own restrictions on defendants. We`ll post on this rule later.) But beyond that, there is a strategy you can use. You just have to wait to find out what it is. Let`s start by taking a look at the rule itself. Here`s what it says: In theory, Federal Criminal Rule 17(c) allows a defendant to issue a subpoena to third parties to obtain documents. In practice, however, the courts have significantly restricted the use by defendants of subpoenas under paragraph 17(c) by imposing a strict standard for what may be requested. In fact, the courts have directly stated that prior communication in criminal matters is very strictly limited by article 16. United States v.
Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (« Courts must ensure that Rule 17(c) is not converted into a comprehensive investigative tool, thereby imposing the strict restriction on detection in criminal cases referred to in Fed.R.Crim.P. 16. »). The term « subpoena » for the purposes of this rule (and mass. R.Crim.P. 35(b)) is intended to refer to what has traditionally been expressed as « subpoena » and « subpoena ». (2) Revocation or modification of the summons. Upon request, the court may revoke or vary the subpoena if compliance would be inappropriate or punitive. The method of service provided for by this rule is essentially in accordance with the procedure provided for by applicable law and civil law, G.L.c.
233, § 2; Mass.R.Civ.P. 45(c), but adds that a subpoena may be issued by mail. The latter means of service is not available when witnesses are summoned to appear by non-destitute defendants, since the alert or payment of fees to the witness is a prerequisite for forcing his presence. G.L.c. 233, § 3. The prototype of this rule can be found in Fed.R.Crim.P. 17. See Massachusetts and Federal Rule of Civil Procedure 45; Code of Criminal Procedure (U.L.A.) Rule 731 (1974). Rule 17 is largely consistent with the previous Massachusetts law. Laws compatible with this rule – e.B.
G.L.c. 233, §§ 5-6 , which allow for sanctions in the event of non-compliance with a summons by a witness – remain in force. This subdivision is designed with little change by Fed.R.Crim.P. Article 17 (a), (c); Rules of Criminal Procedure of the Agreement (U.L.A.) Rule 731 (a), (c) (1974). In response to a defendant`s ex parte written request, which demonstrates that the presence of a designated witness is necessary for an adequate defence and that the defendant is unable to pay the witness` fees, the court orders the issuance of a summons to appear of a person in need at any time. The witness so called shall be remunerated in accordance with subsection (c) of this article. If the court so orders, the costs incurred shall be borne by the defendant in accordance with the general laws or the provisions of these Rules. The first movement of subdivision (d)(1) embodies the material of Mass.R.Civ.P. 45 (c), which allows for service « by any person who is not a party and who is at least 18 years of age ». Compare Fed.R.Civ.P.
45(c) with Fed.R.Crim.P. Article 17(d). This procedure corresponds to that of G.L.c. 233, Article 2, which provides that a summons to appear may be served by an official qualified for civil proceedings or by another person not involved. In addition, there is the service of subpoenas by persons authorized to serve criminal proceedings. The rule appears to allow a defence lawyer to serve or not serve the accused or the Commonwealth, although this practice has been criticised as perhaps « reckless ». 8. FAIR. SERIES OF EXERCISES (Smith & Zobel) Journalist`s Notes at 136 (1977); see Supreme Judicial Court Rule 3:22, including ABA Canons of Professional Ethics, Canon 19 (1972); ABA Code of Professional Responsibility DR 5-102, EC 5-9, 5-10 (1970). (h) information that is not the subject of a subpoena. No party may subpoena the testimony of a witness or potential witness under this rule. Rule 26.2 governs the preparation of the declaration.
Very good article, Sara. When I started doing criminal work (after being involved in civil cases for the first time right after law school), I was shocked at how limited detection was for criminal defendants. The imbalance between the magnitude of grand jury subpoenas and subpoenas under rule 17(c) is truly very unfair. The rules of evidence also apply to admissibility. It can be difficult to determine whether something is admissible, but if a document is arguably admissible under the rules of evidence, Nixon`s evidentiary requirement is likely to be met. Costs incurred by a witness summoned on behalf of a defendant who has been classified as destitute under this rule, as well as costs incurred by a witness summoned on behalf of the Commonwealth, since such costs are determined in accordance with the General Laws, shall be paid after the witness has confirmed the amount of his or her travel and presence in a written notice submitted to the court. does not appear at the time and place specified therein and the court determines that this person has indeed been invited to appear, an arrest warrant may be issued to bring him to justice. First, the wording of the rule largely allows a party to issue a subpoena to « order the witness » to produce the documents described in the subpoena.
The government issues extremely broad subpoenas from the grand jury. It is not expected that everything that is produced in response will be permitted or even necessarily used in the case. The goal is to investigate what happened. Of course, you can give as much information as possible in the movement and describe the email in as much detail as possible. But then the examiner would object that the subpoena was incriminating or « oppressive » because he would have to do a lot of work to find that needle in the haystack. A person who signs a summons to appear under this rule must answer to the court for service. This jurisprudence creates a fundamental gap between the prosecutor`s power to collect incriminating information and a defendant`s power to collect exculpatory information. This gap is exacerbated by the weak implementation of the Prosecutor`s Brady obligations and the vagueness of the rules governing criminal investigations set out in rule 16.
A subpoena may also require the person to whom it is addressed to present the books, papers, documents or other items specified therein […].