RULE 17. SUBPOENA
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(1) A subpoena may be served by any peace officer or any other person who is not a party and who is 18 or more years of age. Service
of a subpoena must be made by delivering a copy thereof of the subpoena to the person named and by tendering to that the person served the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in on behalf of the prosecution or in on behalf of a defendant unable to pay pursuant to under subdivision (b).
(2) If a defendant in an action deposits with the sheriff traveling fees and fees for one day's attendance of any witness, a subpoena for the witness, and a written demand
that the witness be served by mail, commercial carrier, telegraph, or telephone, the sheriff shall serve and make return of the subpoena by one or more of the following methods:
MailingSending a copy of the subpoena to the witness by registered or certified return receipt requestedmail with a return receipt requested, or via third-party commercial carrier providing a traceable delivery service with a return receipt.
(ii) Telegram to the witness, setting forth the subpoena in full. The sheriff shall demand from the telegraph company a service message showing the delivery or non-delivery of the telegram and the officer, upon receipt of the message, shall make the return accordingly. The service message, if it shows delivery, is prima facie evidence of the service.
(iii) Reading the subpoena over the telephone to the person to be served. If the person upon whom service is made acknowledges personal identity over the telephone to the officer making the service, the acknowledgment is prima facie evidence of service and the officer shall make the return accordingly.
A deposit for fees and mileage is not required if the fees and mileage are to be paid by this state or any of its political subdivisions. If service is made
pursuantto under this subdivision, the sheriff, in lieu of mileage, per diem, and delivery, must be reimbursed for the cost of postage, telegrams, or telephone calls. If the witness so served fails to appear, the sheriff shall return the deposit to the party who made it.
(3) A witness personally served with a subpoena, except when the fees and mileage of the witness are to be paid by this state or any of its political subdivisions, may demand the witness fee and mileage for one day's attendance at the time the subpoena is served. If those fees are not paid, the witness is not obliged to obey the subpoena. The fact of the demand and nonpayment must be stated in the return. A witness served with a subpoena by mail or third-party commercial delivery, telephone, or telegraph, upon appearance, may demand and is entitled to receive from the sheriff the witness fee and mileage for one day's attendance, unless the fees of that witness are to be paid by this state or any of its political subdivisions.
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Rule 17 was amended, effective September 1, 1983; March 1, 1990; _________________.
Rule 17 follows the Federal Rule.
in substance and controls with respect to all subpoenas in criminal cases issued by the courts of this State. Rule 17 also conforms substantially with Rule 45 of the North Dakota Rules of Civil Procedure with two exceptions: (1) The provision for defendants unable to pay [17(b)] which was added to conform to the Federal Rules, and (2) Place of service [17(e)].
The Rule is not limited to a subpoena for
thetrial. A subpoena may be issued for a preliminary hearing, in aid of a grand jury investigation, or in a deposition, or for a determination of an issue of fact raised by a pretrial motion. This Rule is also intended to obtain witnesses and documents for use as evidence, although it is not a discovery device. Subdivisions (a) (d) and (g) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subsection (a)(1) follows the Federal Rule except
that subpoenas may be issued by the magistrate as well as the clerk of court. The fact that some of the lesser State courts are without the benefit of a clerk necessitates this requirement. As amended in 1983, effective September 1, 1983, deleting "(other than a subpoena to secure the attendance of a witness for deposition)" in the first two lines, subsection (a)(2) follows Rule 45(a)(2) of the North Dakota Rules of Civil Procedure and provides that an attorney for a party may issue subpoenas with the same effect as if issued by the clerk or magistrate. Subdivision (b) follows Federal Rule 17(b). There is no similar provision in the North Dakota Rules of Civil Procedure. Subdivision (b) provides a means by which the defendant unable to pay witnesses' fees and travel costs may have persons subpoenaed. If a subpoena is issued under this Rule, the fees and costs are paid in the same manner as in the case of a witness subpoenaed by the prosecution. Subdivision (c) follows Rule 17(c), FRCrimP, and is similar to Rule 45(g), NDRCivP. Rule 17(c) authorizes issuance of a subpoena duces tecum in a fashion quite similar to Rule 45(b), NDRCivP. [Note: The third sentence of Subdivision (c) has no counterpart in Rule 45(b).] Rule 17 generally is available to any "party" and this is no less true of 17(c). Thus the prosecution as well as the defendant may use the Rule, subject to the limitations imposed by the Fourth and Fifth Amendments. Subsection 17(d)(1) follows Rule 17(d), FRCrimP, and also makes reference to Rule 17(b) of the Federal Rules in application to service by defendants unable to pay.
A subpoena will ordinarily be served by a peace officer
although Subdivision (d) goes beyond Section 31-03-13, NDCC (Service of subpoenas Proof Peace officers required to make), in permitting service although service is permitted by any person who is not a party and who is 18 or more years of age. Service of a subpoena under the Federal Rule has been held effective only if the fee for one day's attendance and the mileage allowed by law are tendered to the witness when the subpoena is delivered. Fees and mileage need not be tendered if the subpoena is issued in behalf of the State or on behalf of a defendant unable to pay.
Subdivision (d) was amended, effective to allow the use of a commercial carrier as an alternative to the Postal Service.
Subsections (d)(2) and (d)(3) were adopted from Rule 45(c)(2) and Rule 45(c)(3), NDRCivP.
Subdivision (e) is an adaptation of the Colorado Rules of Criminal Procedure. Under Chapter 31-03, NDCC (Means of Compelling Attendance of Witnesses), North Dakota has adopted a Uniform Act to secure the attendance of witnesses from another State in criminal proceedings. Under Subsection (e)(2) service of subpoenas on witnesses out of state is governed by Chapter 31-03, NDCC.
Subdivision (f) follows its Federal counterpart, with appropriate changes to satisfy the requirements of North Dakota. Subsection (f)(1) provides that a court order for the taking of depositions gives authority to the clerk of court or magistrate to issue subpoenas for the persons named or described therein.
follows the language of the Preliminary Draft of Proposed Amendments to the Federal Rules [52 F.R.D. 447 (1971)]. It provides the court with discretion in determining where the deposition is to be taken. Similar authority is conferred by Rule 45(d)(2), NDRCivP. Subdivision (g) follows Rule 17(g), FRCrimP, and Rule 45(f), NDRCivP. This provision merely restates existing law.
Subdivision (h) was adopted in 1983.
, effective September 1, 1983, to provide that "Statements made by witnesses or prospective witnesses are not subject to subpoena under this Rule but are subject to production in accordance with Rule 16." This subdivision was adopted to correlate with amendments made to Rule 16 relating to production of statements.
SOURCES: Procedure Committee Minutes of ___________________; April 20, 1989, page 4; December 3, 1987, page 15; November 18 19, 1982, pages 10-13; October 15-16, 1981, pages 6-10; October 12-13, 1978, page 8; June 26-27, 1972, pages 14-20; July 25-26, 1968, pages 6-10; Rule 17, FRCrimP;
Wright, Federal Practice and Procedure: Criminal, 271-279 (1969); 8 Moore's Federal Practice, Chapter 17 (Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal, 2041-2047 (1951); Rule 17, Colorado Rules of Criminal Procedure (1964); A.B.A. Standards for Criminal Procedure, Standards Relating to Discovery and Procedure Before Trial, 2 (Approved Draft, 1970).
SUPERSEDED: 31-03-04, 31-03-07, 31-03-08, 31-03-09, 31-03-13, 31-06-07, 40-18-09, NDCC.
CONSIDERED: 29-10.1-19, 31-03-01, 31-03-15, 31-03-16, 31-03-17, 31-03-18, 31-03-25, 31-03-26, 31-03-27, 31-03-28, 31-03-29, 31-03-30, 31-03-31, NDCC.
CROSS REFERENCE: Rule 45, NDRCivP, Subpoena.