Fact witnesses and documents
The issuance of subpoenas for defense fact (as opposed to expert) witnesses to appear and testify at a hearing or trial is governed by 28 U.S.C. §1825, Fed. R. Crim. P. 17(a), and D. Kan. Local Rule CR17.1. Upon presentation of a court order or a Rule CR17.1 subpoena, the United States Marshal Service (USMS) is responsible both for (1) serving subpoenas (if requested by defense counsel), and (2) paying the witness fees and expenses of fact witnesses.
Under Rule CR17.1, CJA counsel may request and receive signed/sealed blank subpoenas from the clerk---without a court order---for witnesses to appear and testify at "a hearing or trial" but not for witnesses to appear and testify at a preliminary hearing, a pretrial-detention hearing, or a supervised-release-revocation or modification hearing. See Rule CR17.1(d).
- These clerk-issued blank subpoenas may be used to summon witnesses only, and not to demand documents or other objects. Subpoenas duces tecum for documents and other objects are governed by Fed. R. Crim. P. 17(c) and require a motion and order (see sample fillable motions and orders below).
- These clerk-issued blank subpoenas are deemed issued by the court under Fed. R. Crim. P. 17(b).
- Counsel must exercise good faith in using these clerk-issued blank subpoenas. Under Rule CR17.1(a), "[b]y completing a blank subpoena, defense counsel represents that counsel believes the defendant is unable to pay the witness fees and that the presence of the witness is necessary to an adequate defense."
For subpoenas not covered by Rule CR17.1 (subpoenas for documents and objects, or for witnesses to appear and testify at a preliminary hearing, a pretrial-detention hearing, or a supervised-release-revocation or modification hearing), you may use the below fillable motion and order forms:
Issuance of a subpoena not covered by Rule CR17.1.
- Prepare one of the above motions using the fillable Word Motion form. If the witnesses will be entitled to payment of expenses, such as transportation and lodging, that should be included in the fillable Word Order. If funds need to be advanced (rather than reimbursed) that should also be included in the fillable Word Order form.
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:
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- After filing the motion, email a filled in Ex Parte Order to the judge’s chambers address.
- Once the Ex Parte Order for Production has been signed and electronically filed, you may prepare your subpoena, using the Court's form for subpoenaing a witness or documents as appropriate.
- 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 subpoenas (whether by Rule CR17.1 or order)
The clerk will not deliver subpoenas to the USMS for service. 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.
To request Marshal subpoena service and payment of witness fees and expenses, provide the following to the U.S. Marshal at least two weeks in advance of your target service date:
- The Rule CR17.1 subpoena or court order;
- Your CJA court order of appointment;
- An email or memo requesting transportation and/or lodging for the witness (if needed);
- USM-24 (try Edge if form will not open in Chrome) requesting an advance of funds (if needed), along with an email or memo from counsel stating that the witness is indigent and requires advanced funds; and
- DOJ-3 (try Edge if form will not open in Chrome) requesting reimbursement of expenses.
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 a 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.