RULE 17. SUBPOENA
For attendance of witnesses and production of evidence; form;
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,
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 subpoena, or a subpoena for
the production of documentary evidence or objects, may also be issued by the attorney
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
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
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
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
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,
or objects or portions thereof to be inspected by When the items arrive, the court
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
allowance when the prosecution or in behalf of a defendant unable to pay
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
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
(ii) Telegram to the witness, setting forth the subpoena in full. The sheriff shall
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
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
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
(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
at any place designated by the trial court, taking into account After considering
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
of the court from which the subpoena issued Failure by any witness without
to obey a subpoena served upon that witness may be a contempt of the court from which the
(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
Rule 16 governs the production of a statement.
Rule 17 was amended September 1, 1983; March 1, 1990; March 1, 2006.
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
technical in nature and no substantive change is intended.
Rule 17 was amended, effective March 1, 2006, 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
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
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. 17(c) authorizes issuance of a subpoena duces tecum in a fashion
to N.D.R.Civ.P. 45(b). [Note: The third sentence of Subdivision (c) has no
Rule 45(b).] Rule 17 generally is available to any "party" and this is no less true of
subdivision (c). Thus the prosecution as well as the defendant may use the
(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
of the Federal Rules in application to service by defendants unable to pay.
was amended, effective March 1, 2006, 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
(d) goes beyond N.D.C.C. § 31-03-13. (Service of subpoenas--Proof--Peace
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
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
adopted a Uniform Act to secure the attendance of witnesses from another State
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
to the Federal Rules [52 F.R.D. 447 (1971)]. It Paragraph (f)(2) provides the
discretion in determining where the deposition is to be taken. Similar authority is
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)
This provision merely restates existing law.
Subdivision (h) was adopted
in 1983, effective September 1, 1983, to
"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 January 27-28, 2005, pages 13-14;
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
Criminal, § § 271-279 (1969); 8 Moore's Federal Practice, Chapter 17 (Cipes, 2d
Ed. 1970); Barron, Federal Practice and Procedure: Criminal, § § 2014-2047
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
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).