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
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:
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
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
Subpoena of Federal Government Agent or Employee
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.