How Do You Solve a Problem Like Subpoenas?

BY TOM MILLS AND KRYSTAL LAPORTE

Subpoenas are often viewed through the lens of civil litigation. However, subpoenas are a valuable tool for defense attorneys to not only secure critical testimony at trial, but also obtain material and relevant discovery.

There are two common types of subpoenas: the subpoena ad testificandum and the subpoena duces tecum. A subpoena ad testificandum, more commonly referred to only as a “subpoena,” orders a person to come and testify.

The subpoena duces tecum is a subpoena where the individual is ordered to come and bring items such as documents or recordings. A subpoena duces tecum may require the witness to testify as well, either to authenticate the documents to allow their use as evidence or to testify about the facts of the case. When a defense attorney applies for documents using a subpoena duces tecum, it is usually a good practice to include a standard business records affidavit along with the sub- poena, setting forth the documents the lawyer wishes to receive.

Subpoena Best Practices

For witnesses within Dallas County, a subpoena in a criminal case may be applied for under art. 24.03 of the Texas Code of Criminal Procedure. If the witness resides in another Texas county, Article 24.16 entitles the State or defense to a subpoena for an out-of-county witness in felonies and misdemeanors punishable by confinement. A subpoena must include:

• The specific person, people, or organization being called to testify/bring documents;

• The date that their presence or records are required;

• The items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling;

• The specific Court in which the matter is pending; and

• Any proceeding where the person/people will have to testify.

A subpoena must be served by a sheriff or constable of the State of Texas, or any person who is not a party to the case (including the attorney) and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on that attorney.

The Texas Code of Criminal Procedure Article authorizes Texas attorneys to subpoena out-of-state witnesses for state trials under the “Uniform Act to Secure Attendance of Witnesses from Without State.” Subpoenaing an out-of-state witness requires filing an application with the Texas court in which the matter is proceeding, obtaining a certificate from the Court to affirm the witness’s necessary presence, and filing that certificate in the state or county in which the witness resides. A judge of the state where the witness resides will then issue the subpoena commanding the witness to appear in Texas.

Less Than Best Practices

A subpoena must not:

1. Be issued through improper service

• A subpoena is considered “served” by:

Ŋ Reading the subpoena in the hearing of the witness;

Ŋ Delivering a copy of the subpoena to the witness;

Ŋ Electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or

Ŋ Mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

• An attorney may not serve the manager or CEO at a witness’s place of employment in lieu of serving the witness themself. Nor may the attorney serve in-house counsel to compel the testimony of multiple employees. Only an agent or attorney authorized to accept service in lieu of the witness may be served on their behalf.

2. Include a request that is too broad or vague:

• A subpoena is not to be used as a discovery weapon, but as an aid to discovery based upon a showing of materiality and relevance.

3. Request privileged or confidential material:

• Certain communications are considered privileged, including communications between a spouse, attorney, therapist, or priest.

4. Require the witness to incriminate themselves:

• The ABA Criminal Justice Standards state that Defense counsel should not call a witness in the presence of the jury when counsel knows the witness will claim a valid privilege not to testify. An attorney may not threaten to call a witness for the purpose of invoking their Fifth Amendment privilege in the presence of the jury. The process of serving a subpoena requires precision and attentiveness. Before sending your next subpoena in a criminal trial, it is vital to understand the procedural and ethical obligations that defense attorneys may face when doing so. HN

Tom Mills, of Tom Mills Criminal Law, PLLC, can be reached at tmills@tmcriminallaw.com. Krystal LaPorte, Attorney at Law, can be reached at krystallaportelaw@gmail.com.

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