CrR 4.8 - Subpoenas

• Proposed Changes to CrR 4.8 - Subpoenas (in Word Format)
• Comments Received for CrR 4.8 - Subpoenas

A. Purpose: Existing CrR 4.8 reads: “Subpoenas shall be issued in the same manner as in civil actions.” Two events underscore the need for a new approach to subpoenas in the criminal context. First, a newly redrafted version of the civil subpoena rule, CR 45, took effect September 1, 2007. Second, prior to the decision of the Court of Appeals in State v. White, 126 Wn. App. 131, 107 P.3d 753 (2005), the practice for issuing subpoenas in criminal actions (particularly the issue of whether to give notice of issuance of a subpoena duces tecum) was not consistent throughout the state. The White case, which required compliance with CR 45 notice obligations for service of all subpoenas, underscored problems in engrafting civil procedures onto criminal cases.

In 2006, along with suggesting the redraft of CR 45, the WSBA submitted a suggested redraft of CrR 4.8. The Supreme Court published both proposals for comment. In May 2007, the Court referred proposed CrR 4.8 back to the WSBA for additional review in light of three letters the Court received in opposition to that proposal. The current proposal is submitted in response to that request for additional review. The proposal is based on extensive consultation with the authors of the comment letters and input of members of the prosecution and defense bar.

The new suggested rule explicitly recognizes two types of subpoenas: (1) those directing a person to attend and give testimony (“a subpoena for testimony”) and (2) those requiring production of documentary evidence or tangible things (“a subpoena for production”).

A subpoena for testimony compels a person to attend a trial or hearing. Provisions regarding form (subsection (a)(1)), service (subsection (a)(3)), and “when excused” (subsection (a)(4)) are consistent with existing practice. Under subsection (a)(1), a subpoena may be issued by the court or by an attorney of record. Under subsection (a)(3), service on a person directed to testify is accomplished by personal service, abode service, or mail (provided that a waiver form is filed in case of service by mail). Proof of service or a waiver of service can be evidenced by affidavit or declaration. The waiver provision is intended as an alternative means of service that will facilitate cost-effective service. Under subsection (a)(4), a person is excused from further testimony after his or her examination, unless otherwise ordered by the court. This subsection is virtually identical to CR 45(f)(2).

A subpoena for production compels a person to produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person. Service requirements for a subpoena for production (subsection (b)(3)) depend upon whether the subpoena also directs the person to attend and give testimony: a subpoena that both requires attendance and production must be served on the witness like a subpoena for testimony, pursuant to subsection (a)(3), but service of a subpoena for production only is accomplished pursuant to CR 5(b). Subsection (b)(4) synthesizes provisions from CR 45(c) for the protection of persons subject to a subpoena for production and provides a mechanism to seek court protection upon timely motion.

Subsection (b)(2) places differing duties on prosecutors and defense counsel to provide advance notice of a subpoena for production. This subsection is premised on the observation that, unlike in civil practice (where discovery obligations of all parties generally correspond), procedural and ethical requirements in criminal cases are such that disclosure obligations differ for the prosecution and the defense. For instance, CrR 4.7 places quite different burdens on prosecutors and defense counsel in the context of discovery. The obligation of a defense lawyer not to act in such a way as to incriminate his or her client creates unique problems.  The proposed rule therefore requires advance notice to the defendant of a subpoena seeking evidence belonging or pertaining to that defendant, and to alleged victims or complaining witnesses of a subpoena seeking evidence belonging or pertaining to that person. This would require the prosecution to give notice to the defendant of essentially all subpoenas for production (assuming that most relevant evidence will “pertain” to the defendant), but would not require the defendant to give notice to the prosecution of all subpoenas for production that the defendant may issue. A defendant would have to provide notice of a subpoena for production for evidence belonging or pertaining to a different defendant in the same case, however. Subsection (b)(2)(B) includes a provision for waiver of notice upon ex parte court order for good cause shown.

To keep the rule as simple as possible, no proposed subpoena form (like the one appended to CR 45) is included in this proposal.