(a)For attendance of witnesses; form; issuance. – A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank, to a party requesting it, who shall fill in the blanks before it is served. A subpoena shall be issued by a magistrate in a proceeding before that magistrate, but it need not be under the seal of the court. (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 the subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the state. (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 designated therein. 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 prior to trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys. (d)Service. – A subpoena may be served by the sheriff, by a deputy sheriff, or by any other credible person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to that person, if demanded, 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 state or an officer or agency thereof. (e)Place of service. – A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state. (f)For taking deposition; place of examination. –
(1)Issuance. – An order to take a deposition authorizes the issuance by the clerk of the court for the county in which the deposition is to be taken of subpoenas for the persons named or described therein. (2)Place. – The witness whose deposition is to be taken may be required by subpoena to attend at any place designated within the state by the trial court, taking into account the convenience of the witness and the parties. (g)Contempt. – Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena was issued or of the circuit court for the county in which it was issued if it was issued by a magistrate. (h)Information not subject to subpoena. – Statements made by witnesses or prospective witnesses may not be subpoenaed from the state or the defendant under this rule, but shall be subject to production only in accordance with the provisions of Rule 26.2.
W.Va. R. Crim. P. 17
Effective October 1, 1981; amended effective September 1, 1995.
