RULE 17. SUBPOENA
For attendance of witnesses and production of evidence; form; issuance Content.
Every A subpoena must be issued by the magistrate or the clerk of court, state the court's name of the court and the title of the action, and command each person to whom it is directed the witness to attend and give testimony testify at a the time and place therein specified the subpoena specifies. The clerk or magistrate shall issue a signed blank subpoena, or a signed blank subpoena for the production of documentary evidence or objects, signed but otherwise in blank, to a the party requesting it, who shall and that party must fill it in the blanks before service the subpoena is served.
(2) The attorney for a party to any proceeding may issue
A a subpoena, or a subpoena for the production of documentary evidence or objects, may also be issued by the attorney for a party to any proceeding in the court's name. of the court in like manner and with A subpoena issued by an attorney has the same effect as a subpoena issued under Rule 17(a)(1) if issued by the clerk or magistrate. The subpoena must be subscribed in the name of state the attorney's name, together with the attorney's office address, and must identify the party for whom the attorney appears.
Defendants Defendant Unable to Pay. The Upon a defendant's ex parte application, the court shall must order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a if the defendant upon a satisfactory showing that the defendant is financially unable shows an inability to pay the fees of the witness's fees and that the presence of the necessity of the witness's presence for is necessary to an adequate defense. If the court orders a subpoena to be issued, the process costs and witness fees incurred by the process and the fees of the witness so subpoenaed must be paid in the same manner in which similar costs and fees are paid in the case of a witness subpoenaed in behalf of as those paid for witnesses the prosecution subpoenas.
For production of documentary evidence and of Producing Documents and Objects.
(1) In General. A subpoena may
also command order the person to whom it is directed witness to produce the any books, papers, documents, data, or other objects therein designated the subpoena designates. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, or objects the witness to produce the designated items in the subpoena be produced before the court at a time before the trial or before they are to be offered in evidence. and upon their production may permit the books, papers, documents, or objects or portions thereof to be inspected by When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
(1) A subpoena may be served by any peace officer or any other person nonparty who is not a party and who is eighteen or more at least 18 years of age old may serve a subpoena. Service of a subpoena must be made by delivering The server must deliver a copy thereof of the subpoena to the person named witness and by tendering to that person the must tender to the witness one day's witness attendance fee for one day's attendance and the legal mileage allowed by law allowance. Fees and mileage The server need not be tendered to the witness upon service of a subpoena issued in behalf of tender the attendance fee or mileage allowance when the prosecution or in behalf of a defendant unable to pay pursuant to subdivision (b) under Rule 17(b) has requested the subpoena. (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, telegraph, or telephone, the sheriff shall serve and make return of the subpoena by one or more of the following methods: (I) Mailing a copy of the subpoena to the witness by registered or certified return receipt requested mail. (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 pursuant to 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, 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.
(e) Place of service.
(1) In North Dakota. A subpoena requiring
the attendance of a witness at a witness to attend a hearing or trial may be served anywhere within North Dakota.
(2) Witness Outside State. Service on a witness outside this state may be made only as provided by law.
For taking Issuing a Deposition ; place of examination Subpoena.
(1) Issuance. An order to take a deposition authorizes
the issuance by the clerk of court or a magistrate of subpoenas for the persons to issue a subpoena for any witness named or described therein in the order.
A witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court, taking into account After considering the convenience of the witness and the parties, the court may order--and the subpoena may require--the witness to appear anywhere the court designates.
An unexcused failure to obey a subpoena served upon a person is a contempt of the court from which the subpoena issued Failure by any witness without adequate excuse to obey a subpoena served upon that witness may be a contempt of the court from which the subpoena issued.
(h) Information Not Subject to Subpoena.
Statements made by witnesses No party may subpoena a statement of a witness or of a prospective witnesses witness are not subject to subpoena under this rule. but are subject to production in accordance with N.D.R.Crim.P. Rule 16 governs the production of a statement.
Rule 17 was amended September 1, 1983; March 1, 1990;______________.
Rule 17 follows
the Federal Rule Fed.R.Crim.P. 17 in substance and controls with respect to all subpoenas in criminal cases issued by the courts of this State state. N.D.R.Crim.P. 17 also conforms substantially with N.D.R.Civ.P. 45 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 17 is not limited to subpoena for the trial. A subpoena may be issued for a preliminary hearing, in aid of a grand jury investigation, or in for a deposition, or for a determination of an issue of fact raised by a pretrial motion. This Rule 17 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.
Rule 17 was amended, effective ______________, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subsection Paragraph (a)(1) follows the Federal Rule Fed.R.Crim.P. 17(a) except that subpoenas may be issued by the magistrate as well as the clerk of court. The fact that some of the lesser State state courts are without the benefit of a clerk necessitates this requirement.
Paragraph (a)(2) was
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 N.D.R.Civ.P. 45(a)(2) and provides to provide 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) Fed.R.Crim.P. 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 subdivision (b), the fees and costs are paid in the same manner as in the case of a witness subpoenaed by the prosecution.
Subdivision (c) follows Fed.R.Crim.P. 17(c)
, and is similar to N.D.R.Civ.P. 45(g), N.D.R.Civ.P. 17(c) authorizes issuance of a subpoena duces tecum in a fashion quite similar to N.D.R.Civ.P. 45(b). [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 subdivision (c). Thus the prosecution as well as the defendant may use the Rule subdivision (c), subject to the limitations imposed by the Fourth and Fifth Amendments. Subsection 17(d)(1) follows Fed.R.Crim.P. 17(d), and also makes reference to Rule 17(b) of the Federal Rules in application to service by defendants unable to pay. Subdivision (d) was amended, effective ___________, to simplify service instructions for a subpoena and to eliminate outmoded methods of service.
A subpoena will ordinarily be served by a peace officer although
Subdivision subdivision (d) goes beyond N.D.C.C. § 31-03-13. (Service of subpoenas--Proof--Peace officers required to make), in permitting permits service by any person who is not a party and who is 18 or more years of age old. Service of a subpoena under the Federal Rule Fed.R.Crim.P. 17 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 state or on behalf of a defendant unable to pay. Subsections (d)(2) and (d)(3) were adopted from N.D.R.Civ.P. 45(c)(2) and N.D.R.Civ.P. 45(c)(3).
Subdivision (e) is an adaptation of the Colorado Rules of Criminal Procedure. Under N.D.C.C. ch. 31-03
. (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 paragraph (e)(2) service of subpoenas on witnesses out-of-state is governed by N.D.C.C. ch. 31-03.
Subdivision (f) follows
its Federal counterpart Fed.R.Crim.P. 17(f), with appropriate changes to satisfy the requirements of North Dakota. Subsection Paragraph (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. Subsection (f)(2) follows the language of the Preliminary Draft of Proposed Amendments to the Federal Rules [52 F.R.D. 447 (1971)]. It Paragraph (f)(2) provides the court with discretion in determining where the deposition is to be taken. Similar authority is conferred by N.D.R.Civ.P. 45(d)(2).
Subdivision (g) follows
Fed.R.Crim.P. 17(g), and N.D.R.Civ.P. 45(f) N.D.R.Civ.P. 45(e). This provision merely restates existing law.
Subdivision (h) was adopted
in 1983, effective September 1, 1983, to provide that "Statements statements made by witnesses or prospective witnesses are not subject to subpoena under this Rule 17 but are subject to production in accordance with Rule 16. " This subdivision was adopted to correlate with amendments made correlates to Rule 16's provisions relating to production of statements.
SOURCES: Joint Procedure Committee Minutes of _______________ pages ___; 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; Fed.R.Crim.P. 17
; 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, § § 2014-2047 (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: N.D.C.C. § § 31-03-04, 31-03-07, 31-03-08, 31-03-09, 31-03-13, 31-06-07, 40-18-09.
CONSIDERED: N.D.C.C. § § 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.
CROSS REFERENCE: N.D.R.Civ.P. 45 (Subpoena).