FACT WITNESSES—Subpoenas and Expenses

The issuance of subpoenas for defense fact (as opposed to expert) witnesses to attend a hearing or trial, is governed by Rule 17 of the Federal Rules of Criminal Procedure and 28 U.S.C. §1825. Upon a court order, the United States Marshal Service (USMS) is responsible both for (1) serving subpoenas and (2) paying the witness fees and expenses of fact witnesses.

To get a fact witness subpoenaed, follow these steps:

Issuance of a Subpoena

1. Prepare a Motion for Production of Witnesses (Rule 17(b)). In the motion, list the witnesses you want subpoenaed and the address for each witness. If the witnesses will be entitled to payment of expenses, such as transportation and lodging, that should be included in the Order. If funds need to be advanced (rather than reimbursed) that should also be included in the Order. A sample motion is here.

2. File the motion, ex parte and under seal. You do not have to get prior permission to file this motion under seal. The CM/ECF screens will look like this:

3. After filing the motion, email an Ex Parte Order for Production of Witnesses to the judge’s chambers address. The Order should also include the names and addresses of the witnesses. A sample Order is here.

4. Once the Ex Parte Order for Production has been signed and electronically filed, you may prepare your subpoena. A fillable PDF subpoena is here.

5. Email or take the completed subpoena to the clerk’s office. An official seal and signature will be placed on the subpoena and returned to you.

Service of Subpoena

Take the completed, signed, and sealed subpoena and a copy of the Order, to the USMS. The clerk will not deliver the subpoena to the USMS for service. The USMS should have at least ten working days in which to serve the subpoenas.

CJA funds cannot be used to serve subpoenas; do not hire a process server. It is acceptable, though, if your retained investigator serves the subpoena at the same time as the witness is being interviewed.

Payment of Witness Fees and Transportation Expenses

A Form OBD-2, providing instructions for fees and travel reimbursement, is provided to any defense witness who is served by the USMS. After a witness has either testified, or been released from the subpoena, CJA counsel must complete a Form OBD-3 and have the witness sign it. That form, also signed by counsel, should then be sent to the USMS; the check for fees and expenses will be sent directly to the witness.

Subpoena of Federal Government Agent or Employee

More rules and regulations apply if you want to have a federal agent or employee testify on behalf of a defendant. You must follow the rules for the federal agency or department, and provide advance notice to the Government, which then has an opportunity to challenge the subpoena. The ability of the Government to require additional steps comes from the Supreme Court’s decision in United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951). In Touhy, the Court held that a regulation limiting the ability of an inmate to subpoena an FBI agent in a federal habeas corpus action, was a proper exercise of executive authority.

After Touhy, federal agencies made regulations controlling the release of information by their employees—whether by request or by subpoena. Each agency has its own set of regulations, which should be referred to whenever this issue arises.

For general guidance:

Department of Justice (including DEA and FBI) regulations are found at 28 C.F.R. §§16.21-16.26.

Send a letter to the Assistant Attorney General of the Criminal Division with copies to the United States Attorney and the AUSA handling the case. The letter should contain summary of the testimony that is being sought.

Homeland Security (including ICE and CBP) regulations are found at 6 C.F.R. §§5.41-5.45.

Send a letter to the Office of General Counsel for DHS with copies to the United States Attorney and the AUSA handling the case. The letter should contain a summary of the testimony being sought and why it is relevant to the case.