More Categories

Rule 17 – Subpoena for Attendance of Witnesses

May 13, 2021 | Criminal Procedure, Maine

(a) For Attendance of Witnesses; Form; Issuance. A subpoena may be issued by the clerk under the seal of the court or by a member of the Maine Bar. 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 place and during the time period specified therein. The time period shall not exceed the period covered by the trial list scheduling the case. The attorney for the subpoenaing party shall make arrangements to minimize the burden on the subpoenaed person. A member of the Maine Bar has the option in each case of either signing and issuing the subpoena as an officer of the court or instead having the clerk of any Unified Criminal Docket do so. In the latter circumstance, upon the request of the bar member, the clerk shall provide a subpoena, signed and sealed but otherwise in blank. The bar member shall fill in the blanks before it is served. Although a person representing him or herself may not be provided a subpoena in blank, that person has the right to secure the issuance of a subpoena by the clerk for obtaining favorable witnesses whose testimony is relevant and material.
(b) Indigent Defendants. A defendant determined indigent by the court pursuant to Rule 44(b) is entitled to subpoena an in-state witness without payment of the witness fee, mileage, and cost of service of the subpoena. Such fees and costs shall be paid by the Maine Commission on Indigent Legal Services. A request to the sheriff for service shall be accompanied by a certificate of counsel that the defendant has been determined indigent. A defendant who is financially unable to pay the fees and costs to subpoena an out of state witness may move ex parte for an order dispensing with payment of fees and costs. The court shall grant the motion if it finds the defendant is unable to pay the fees and costs and that the presence of the witness is necessary to an adequate defense.
(c) For Production of Documentary Evidence and of Tangible Objects.

A subpoena may also command the person to whom it is directed to produce at a reasonable time and place specified therein the books, papers, documents, or other tangible objects designated therein. Notice of the service of the subpoena and a copy of it shall be provided to opposing counsel or, when applicable, a unrepresented defendant, contemporaneously with service. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable, oppressive, or in violation of constitutional rights.

(d) Privileged or Protected Documentary Evidence. If a party or its attorney knows that a subpoena seeks the production of documentary evidence that may be protected from disclosure by a privilege, confidentiality protection, or privacy protection under federal law, Maine law (for example, requests for Department of Health and Human Services records pursuant to 22 M.R.S. ยง4008(3)(B), so-called “Clifford Orders”), or the Maine Rules of Evidence, the party or its attorney shall file a motion in limine, pursuant to Rule 12, before serving the subpoena. The motion shall contain a statement setting forth (1) the particular documents sought by the subpoena with a reasonable degree of specificity of the information contained therein; (2) the efforts made by the moving party in procuring the information contained in the requested documents by other means; (3) that the moving party cannot properly prepare for trial without such production of the documents; and (4) that the requested information is likely to be admissible at trial. The motion in limine shall be accompanied by a copy of the yet unserved subpoena.

Upon receipt of the motion, the court shall make a preliminary determination that the moving party has sufficiently set forth the relevancy, admissibility, and specificity of the requested documents. If the motion fails to meet the minimum threshold of information required, the court may summarily deny the motion. If the motion satisfies the minimal threshold of information required, the court shall direct the clerk to set the matter for hearing and issue a notice of hearing. The notice shall state the date and time of the hearing and direct the subpoenaed individual or entity from whom the documentary evidence is sought to submit the documentary evidence subject to the subpoena for in camera review by the court or to adequately explain in writing any reasons for a failure to submit the documentary evidence for in camera review. Following the clerk’s issuance of a notice, the party seeking production shall serve the subpoena, the motion, and the notice on the subpoenaed individual or entity from whom the documentary evidence is sought in accordance with subdivision (e).

Upon receipt of the subpoena, the motion and the notice, the subpoenaed individual or entity to whom the subpoena is directed shall either submit the documentary evidence subject to the subpoena for in camera review by the court or provide in writing reasons for the failure to submit the documentary evidence for in camera review before the date of the hearing. After the hearing, the court may issue any order necessary to protect any party’s or nonparty’s privileges, confidentiality protections, or privacy protections under federal law, Maine law, or the Maine Rules of Evidence. A party or nonparty that may assert a privilege, confidentiality protection, or privacy protection may waive the right to a hearing and any applicable privileges or protections by notifying the court in writing that the party or nonparty is waiving any applicable privileges or protections.

(e) Service. A subpoena may be served by the sheriff, by the sheriff’s deputy, by a constable, or by any other 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, except in the case of a person subpoenaed on behalf of the State or a person subpoenaed on behalf of an indigent defendant pursuant to subdivision (b), by tendering to the person the fee for one day’s attendance and mileage allowed by law.
(f) Place of Service.

(1)In State. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Maine.
(2)Out of State. A subpoena directed to a witness outside the State of Maine shall issue under the circumstances and in the manner and be served as provided in the “Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings.”
(g) For Taking Deposition; Place of Examination.

(1)Issuance. An order to take a deposition authorizes the issuance by the clerk of the court of subpoenas for the persons named or described therein.
(2)Place. A resident of this state shall not be required to travel to attend an examination outside the county where the resident resides, or is employed, or transacts business in person, or a distance of more than 50 miles one way, whichever is greater, unless the court otherwise orders. A nonresident of the state may be required to attend only in the county wherein the nonresident is served with a subpoena, or within 50 miles from the place of service, or at such other convenient place as is fixed by order of court.
(h) Enforcement of Subpoena. If a person fails to obey a subpoena served upon that person, the court may issue a warrant or order of arrest.
(i) Grand Jury Proceedings. This Rule does not apply to a grand jury proceeding except as to the form, issuance, and service of a grand jury subpoena; sanction for noncompliance; and the rights of a subpoenaed nonparty.

Me. R. Uni. Crim. P. 17

Last amended effective November 2, 2016.