TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 17, N.D.R.Crim.P., Subpoena
In 2006, the Committee approved several changes to the criminal rules to reflect the fact that the Commission on Legal Counsel for Indigents had taken responsibility for indigent defense.
One of the changes the Committee made was to delete Rule 17(b), which had provided a means for persons unable to pay subpoena witness costs to request those costs from the court. Attorney Jean Delaney of the Commission contacted staff to point out that a cross-reference to Rule 17(b) had been inadvertently retained in Rule 17 and recommended that it be removed.
Proposed amendments to Rule 17 that would remove the obsolete cross reference are attached. Under the proposal, the language of the explanatory note would be further modified to reflect the complete deletion of Rule 17(b).
Delaney said that she would prefer that all requirements for parties, whether prosecution or defendant, to tender witness fees prior to testimony be removed. She said that this is a wasteful practice, particularly when hearings often are canceled or postponed. She said it would be better if there were no requirements for pre-tendering of witness fees in criminal cases. The Committee may wish to discuss this recommendation.