In every criminal case, the prosecuting attorneys and the defendant have the right to compel the attendance of witnesses and the production of tangible evidence by service upon them of a subpoena to appear for examination as a witness upon the trial or other hearing.

Annotation A defendant is not entitled to issue ex parte subpoenas duces tecum by leave of the court. The fifth and sixth amendments to the federal constitution do not give the defendant the right to engage in this type of discovery without providing the information to the prosecution. People v. Baltazar, 241 P.3d 941 (Colo. 2010). Effect of failure of subpoenaed witness to appear. Under some circumstances, failure of court to grant continuance or to order mistrial when witness who has been subpoenaed fails to appear requires reversal. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973). A trial court does not abuse its discretion in denying a continuance because the defendant’s psychiatric witness who had not been served with a subpoena failed to appear. People v. Mann, 646 P.2d 352 (Colo. 1982). Order of court should be required before a subpoena duces tecum is issued. Digiallonardo v. People, 175 Colo. 560, 488 P.2d 1109 (1971). During the course of a criminal prosecution, the prosecution may compel production of telephone and bank records through the use of a subpoena duces tecum so long as the defendant has the opportunity to challenge the subpoena for lack of probable cause. Use of a subpoena duces tecum for such records is not an unreasonable search and seizure provided that it is supported by probable cause and is properly defined and executed. People v. Mason, 989 P.2d 757 (Colo. 1999). Probable cause for issuance of a subpoena duces tecum for obtaining telephone and bank records exists if there is a reasonable likelihood that the evidence sought exists and that it would link the defendant to the crime charged. People v. Mason, 989 P.2d 757 (Colo. 1999). District attorney has standing to challenge defense subpoena of third party. As the prosecuting party, the district attorney has an independent interest in ensuring the propriety of third-party subpoenas as part of the management of the case and the prevention of complainant or witness harassment through improper discovery. People v. Spykstra, 234 P.3d 662 (Colo. 2010). To withstand challenge to criminal pretrial third-party subpoena, defendant must demonstrate: (1) A reasonable likelihood that the subpoenaed materials exist, by setting forth a specific factual basis; (2) that the materials are evidentiary and relevant; (3) that the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (4) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (5) that the application is made in good faith and is not intended as a general fishing expedition. People v. Spykstra, 234 P.3d 662 (Colo. 2010). In addition to this basic test, for subpoenas issued for materials that may be protected by privilege or a right to confidentiality, a balancing of interests is necessary and the defendant must make a greater showing of need. In camera review may be necessary in some instances, but is not mandated. People v. Spykstra, 234 P.3d 662 (Colo. 2010). Witnesses for indigent defendants. The expenses of obtaining the testimony of witnesses for an indigent defendant must be paid by the state. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975). Defendant must establish indigency to satisfaction of court. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975). No authority to quash properly issued subpoena. There is no authority under this rule to quash a subpoena if the district attorney has complied with the technical requirements. People v. Ensor, 632 P.2d 641 (Colo. App. 1981). Mailing a subpoena to a witness, without more, does not comply with the requirements in section (e). The record does not indicate that the prosecution exercised diligence in trying to obtain the witness’ presence. People v. Stanchieff, 862 P.2d 988 (Colo. App. 1993). Subpoena served by mail insufficient to invoke contempt. A subpoena served by mail, pursuant to an administrative order, is insufficient to invoke the sanction of contempt under section (h). People v. Mann, 646 P.2d 352 (Colo. 1982). For in camera examination of subpoenaed bank records, see Pignatiello v. District Court, 659 P.2d 683 (Colo. 1983). Discovery costs. Prior to requiring the public defender’s office to pay costs of copying a police officer’s file for an in camera review by the court, the court should make the following specific findings: Was the defendant’s subpoena unreasonable or oppressive and were the city’s proffered concerns as to use and possible loss justified? The court should consider whether adequate safeguards could be provided for an initial in camera review of the original documents and whether any payment should be limited to actual costs. In doing so, the court must balance the government’s interests against defendant’s interests in disclosure. People v. Trujillo, 62 P.3d 1034 (Colo. App. 2002), rev’d on other grounds, 83 P.3d 642 (Colo. 2004). Applied in People v. Duncan, 179 Colo. 253, 500 P.2d 137 (1972); A v. District Court, 191 Colo. 10, 550 P.2d 315 (1976); Losavio v. Robb, 195 Colo. 533, 579 P.2d 1152 (1978).

For fees of witnesses, see §§ 13-33-102 and 13-33-103 , C.R.S.