Obsolete Date: 3/1/2006
(a) For Attendance of Witnesses and Production of Evidence: Form;Issuance.
(1) Every subpoena must be issued by the magistrate or the clerk of court, state the name of the court and the title of the action, and command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk or magistrate shall issue a subpoena, or a subpoena for the production of documentary evidence or objects, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.
(2) 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 name of the court in like manner and with the same effect as if issued by the clerk or magistrate. The subpoena must be subscribed in the name of the attorney, together with the attorney's office address, and must identify the party for whom the attorney appears.
(b) Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense. If the court orders a subpoena to be issued, the costs 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 the prosecution.
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects therein designated. 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 designated in the subpoena be produced before the court at a time before the trial or before they are offered in evidence and upon their production may permit the books, papers, documents, or objects or portions thereof to be inspected by the parties and their attorneys.
(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 to the person named and by tendering to that person 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 behalf of the prosecution or in behalf of a defendant unable to pay pursuant to 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, 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 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.
(f) For Taking Deposition; Place of Examination.
(1) Issuance. An order to take a deposition authorizes the issuance by the clerk of court or a magistrate of subpoenas for the persons named or described therein.
(2) Place. 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 the convenience of the witness and the parties.
(g) Contempt. An unexcused failure to obey a subpoena served upon a person is a contempt of the court from which the subpoena issued.
(h) Information Not Subject to Subpoena. 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.
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.