RULE 17. SUBPOENA
(1) A subpoena must state the court's name and the title of the action, and command the witness to attend and testify at the time and place 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, to the party requesting it, and that party must fill in the blanks before 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, in the court's name. A subpoena issued by an attorney has the same effect as a subpoena issued under Rule 17(a)(1). The subpoena must state the attorney's name, office address, and the party for whom the attorney appears.
(c) Producing Documents and Objects.
(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. 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.
(d) Service. A peace officer or any nonparty who is at least 18 years old may serve a subpoena. The server must deliver a copy of the subpoena to the witness and must tender to the witness one day's witness attendance fee and the legal mileage allowance. The server need not tender the attendance fee or mileage allowance when the prosecution or an indigent defendant has requested the subpoena.
(e) Place of service.
(1) In North Dakota. A subpoena requiring 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.
(3) Subpoena in Out-of-State Action. N.D.R.Ct. 5.1 defines the procedure for discovery or depositions in an out-of-state action.
(f) Issuing a Deposition Subpoena.
(1) Issuance. An attorney for a party to the proceeding may issue a subpoena for any witness to appear or produce documentary evidence at a deposition. An order to take a deposition authorizes the clerk of court or a magistrate to issue a subpoena for any witness named or described in the order.
(2) Place. 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.
(g) Contempt. 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. No party may subpoena a statement of a witness or of a prospective witness under this rule. Rule 16 governs the production of a statement.
Rule 17 was amended September 1, 1983; March 1, 1990; March 1, 2006; June 1, 2006; March 1, 2008; March 1, 2013; March 1, 2018.
Rule 17 follows Fed.R.Crim.P. 17 in substance and controls with respect to all subpoenas in criminal cases issued by the courts of this state.
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, for a deposition, or for a determination of an issue of fact raised by a pretrial motion. Rule 17 is also intended to obtain witnesses and documents for use as evidence, although it is not a discovery device.
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.
Paragraph (a)(1) follows 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 courts are without the benefit of a clerk necessitates this requirement.
Paragraph (a)(2) was amended, effective September 1, 1983, to provide that an attorney for a party may issue subpoenas with the same effect as the clerk or magistrate.
Subdivision (b), which provided assistance for indigent defendants seeking to subpoena persons, was deleted, effective June 1, 2006. As of January 1, 2006, the North Dakota Commission on Legal Counsel for Indigents became responsible for providing defense services, including subpoenas, to indigent defendants.
Subdivision (c) follows Fed.R.Crim.P. 17(c) and authorizes issuance of a subpoena duces tecum. 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 subdivision (c), subject to the limitations imposed by the Fourth and Fifth Amendments.
Subdivision (d) was amended, effective March 1, 2006, to simplify service instructions for a subpoena and to eliminate outmoded methods of service. Subdivision (d) was amended, effective March 1, 2008, to eliminate an obsolete cross-reference.
A subpoena will ordinarily be served by a peace officer although subdivision (d) permits service by any person who is not a party and who is 18 or more years old. Service of a subpoena under 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 or on behalf of a defendant unable to pay.
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 paragraph (e)(2) service of subpoenas on witnesses out-of-state is governed by N.D.C.C. ch. 31-03.
Subdivision (e) was amended, effective March 1, 2013, to direct persons to N.D.R.Ct. 5.1 for information about how to proceed with discovery in this state in an action pending in an out-of-state court. N.D.R.Ct. 5.1 outlines procedure for interstate depositions and discovery.
Subdivision (f) follows Fed.R.Crim.P. 17(f), with appropriate changes to satisfy the requirements of North Dakota. Paragraph (f)(1) provides that a court order for the taking of depositions gives authority to the clerk of court, magistrate or an attorney for a party to the proceeding to issue subpoenas for the persons named or described therein.
Paragraph (f)(2) provides the court with discretion in determining where the deposition is to be taken.
Subdivision (g) follows N.D.R.Civ.P. 45(e). This provision merely restates existing law.
Subdivision (h) was adopted, effective September 1, 1983, to provide that statements made by witnesses or prospective witnesses are not subject to subpoena under Rule 17 but are subject to production in accordance with Rule 16. This correlates to Rule 16's provisions relating to production of statements.
SOURCES: Joint Procedure Committee Minutes of September 29-30, 2016, pages 27-28; January 26-27, 2012, pages 3-7; September 30, 2011, pages 12-15; April 28-29, 2011, page 25; April 26-27, 2007, pages 22-23; April 27-28, 2006, pages 2-5, 15-17; 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.
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); N.D.R.Ct. 5.1 (Interstate Depositions and Discovery).