Rule 17. Subpoena for Attendance of Witnesses

(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. § 4008(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.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 17 of the Maine Rules of Criminal Procedure but differs in the following respects. First, the amendment modifies Rule 17, subdivision (a) in three respects. First, language is added to make clear that a member of the Maine Bar always has the option 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 is required to provide a subpoena, signed and sealed but otherwise in blank. It is left to the requesting bar member to then complete the subpoena before service. Second, language is added to make clear that a bar member requesting a clerkprovided subpoena may obtain it from any Unified Criminal Docket clerk. Third, in the last sentence, the words "him or herself" replace the word "themselves" as a matter of word choice. Second, in subdivision (b), the two separate paragraphs are combined into a single paragraph. Third, in subdivision (c), the word "unrepresented" replaces the word "pro se" as a matter of word choice. Fourth, in subdivision (d), language is added to identify with particularity what a party seeking to enforce a subpoena must show preliminarily to the court in order to avoid the motion in limine being summarily quashed. The test imposed reflects Maine case law. State v. Marroquin-Aldana, 2014 ME 47, ¶ 34, 89 A.3d 519; State v. Watson, 1999 ME 41, ¶ 6, 726 A.2d 214. Further, because a motion seeking to enforce a subpoena for Department of Health and Human Services records, pursuant to 22 M.R.S. § 4008(3)(B) (a so-called "Clifford Order"), is often sought, it is added as an example. Fifth, a new subdivision (i) is added to eliminate any potential confusion as to the applicability of the Rule to a grand jury subpoena. A prosecutor from the Office of the Attorney General or a district attorney's office is statutorily empowered to present evidence to a grand jury (15 M.R.S. § 1256) and the compulsory subpoena process is a concomitant power necessary for the attendance of needed witnesses, documentary evidence, or tangible objects before the grand jury. Both powers conferred are fundamental to the operation of the grand jury process and are inherent in Rule 6. However, unlike proceedings generally to which Rule 17 applies, a grand jury proceeding is not a judicial proceeding and is nonadversarial because there is no participating adverse party. See 1 Cluchey & Seitzinger, Maine Criminal Practice, § 17.1 at IV-122 (Gardiner ed. 1995). As a consequence, those portions of the Rule addressing procedure relating to an adverse party are not relevant. New subdivision (i) makes it clear that those portions have no application to a grand jury subpoena.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Notes – 1979 [M.R. Crim. P. 17(b).] Rule 17(b) is amended to incorporate the presumption that defendants determined indigent for purposes of assignment of counsel cannot afford to subpoena witnesses. While exceptions to the rule will exist, the cost of weeding them out is too great. The savings in time and effort of court and counsel in the vast majority of cases where the defendant cannot afford to subpoena an in-state witness outweigh the savings realizable in the exceptional cases.

Advisory Committee Notes – 1983 [M.R. Crim. P. 17(a).] The amendment is designed to emphasize that a subpoena need not be limited to a specific day but may specify a reasonable time period.

Advisory Committee Notes – 1987 [M.R. Crim. P. 17(a).] This amendment substitutes members of the Maine Bar for justices of the peace as officers authorized to issue subpoenas. The legislature is phasing out the office of justice of the peace and replacing it with the office of notary public. 5 M.R.S. § 82 (Supp. 1985-1986); State v. Ellis , 502 A.2d 1037, 1038 (Me. 1985). The Advisory Committee believed it desirable to restrict the issuance of subpoenas to members of the Bar, who are vested with the powers of a notary public. A parallel amendment is being made to M.R. Civ. P. 45(a).

Advisory Committee Notes – 1988 [M.R. Crim. P. 17(a).] The amendment attempts to balance burdens of inconvenience. The present three-day limit on the life of a subpoena requires the attorney for the subpoenaing party to re-subpoena the witness for the life of the trial list until the case is called. On the other hand, the witness ordinarily should not have to come to the courthouse until the case is called. The amendment makes the subpoena effective for the life of the trial list, but requires the attorney for the subpoenaing party to minimize the courthouse waiting time of the subpoenaed witness.

Advisory Committee Notes – 2000 [M.R. Crim. P. 17(a).] This amendment clarifies the role of the clerk in the subpoena process for attendance of witnesses. First, the amendment replaces the word "shall" with the word "may" in the first sentence since the purpose of that sentence is to recognize the statutory authority of the clerks of the several courts and Maine Bar members (by virtue of possessing the power of notaries public) to issue subpoenas. See 16 M.R.S. § 101 (1983) and 4 M.R.S. § 1056 (1989). Notaries public remain omitted because it is not contemplated that they will issue subpoenas for witnesses in criminal proceedings. Second, the amendment seeks to improve upon the explanation in the current final sentence in subdivision (a) as to the duty of a clerk to provide, upon request, blank subpoenas to Maine Bar members representing clients. Third, and finally, the amendment addresses the pro se defendant's right to exercise compulsory process. It identifies that person's right under the federal and Maine constitutions to secure the process and testimony of any witness whose testimony will be relevant, material and favorable to the defendant. United States v. Valenzela-Bernal , 458 U.S. 858, 867 (1982); See also State v. Willoughby , 507 A.2d 1060, 1068 (Me. 1986). Currently Rule 17 does not require judicial oversight for in-state subpoenas for pro se defendants and unlike the quashing of subpoenas duces tecum, no process is provided in the Rule allowing for the quashing of subpoenas ad testificandum. Further, the Law Court has held it improper for a court, at least in the context of a motion based upon the anticipated inadmissibility of the potential witness's testimony, to entertain a motion to quash a subpoena ad testificandum. State v. Willoughby , Id . at 1067, n.6. Left open by the Law Court is the propriety of a court entertaining such a motion on some other ground, such as "where [a] requested subpoena would constitute an oppressive and unreasonable use of the process by the court." Id . See also , 1 Cluchey & Seitzinger, Maine Criminal Practice § 17.7 at IV-127 (rev. ed. 1995). Thus, under current Rule 17 it is essentially left to the individual defendant to ensure that the testimony of any witness subpoenaed be relevant, material and favorable. Of course, the person representing themselves must fully cooperate with the clerk to ensure that the subpoena is properly filled out and nothing prohibits a clerk from consulting with a presiding judge or justice prior to issuing a subpoena.

Advisory Committee Notes – 2001 [M.R. Crim. P. 17(g).] This amendment specifically provides for a warrant or order of arrest to enforce a subpoena; it leaves the subject of contempt for failure to obey a subpoena to Rule 42.

Advisory Committee Note – June 2005 [M.R. Crim. P. 17(d), (e), (f), (g) and (h).] In addition to making certain formalistic changes, including redesignating current subdivisions (d), (e), (f) and (g), subdivisions (e), (f), (g) and (h) respectively, this amendment clarifies the procedures that parties and their attorneys must follow when serving a subpoena that may seek the production of documentary evidence protected from disclosure by a privilege, confidentiality protection or privacy under federal law, Maine law or the Maine Rules of Evidence. The amendment recognizes that the vast majority of subpoenas for documentary evidence are directed to non-party witnesses who are not represented by counsel. New subdivision (d) provides a specific procedure that allows parties and their attorneys to serve subpoenas seeking documentary evidence potentially protected by a legally cognizable privilege or protection by establishing a mechanism by which the court may expeditiously review and approve the production of such evidence. Nothing in this new subdivision should be construed to preclude a court from ordering disclosure of materials upon a requisite finding. New subdivision (d) is not intended to allow a court to quash the production of documentary evidence on the ground that those materials may not be admissible at trial. See State v. Willoughby , 507 A.2d 1060, 1067 n.6 (Me. 1986). The subdivision neither expands the rights and privileges of subpoenaed parties nor imposes new ethical requirements on attorneys. Finally, the new subsection does not expand or alter any privileges, confidentiality protections or privacy protections under federal law, Maine law or the Maine Rules of Evidence.

Advisory Note – June 2006 M.R. Crim. P. 17(g)(2). The amendment replaces the spelled-out number "fifty" with its figure counterpart. See Advisory Note to M.R. Crim. P. 6(a) and (b)(2).

Advisory Note – July 2010 M.R. Crim. P. 17(b). See Advisory Note—July 2010 to M.R. Crim. P. 44.

Advisory Note – October 2013 Rule 17 is amended to resolve three problems that had developed in its operation. The first problem was uncertainty about where and when subpoenaed documents or other tangible objects pursuant to subdivision (c) were to be produced by a subpoenaed witness who is commanded to testify at a trial or hearing. Rule 17(c) formerly provided that the court "may direct" that the subpoenaed documents or other tangible objects "be provided before the court at a time prior to trial." However, in practice this judicial action rarely happened. Instead, the subpoenaing party and the subpoenaed witness negotiated about the time and place of production, with no guidance from the rule. As now amended, subdivision (c) requires that the subpoena direct the subpoenaed person to produce the designated documentary evidence or other tangible objects "at a reasonable time and place specified therein." The second problem was uncertainty about what notice, if any, was to be provided to an adverse party at the time a subpoena issued. Rule 17(c) formerly provided no guidance. As now amended, subdivision (c) provides that "[n]otice of the service of the subpoena and a copy of it shall be provided to opposing counsel or, when applicable, a pro se defendant, contemporaneously with service." The third problem was presented when the subpoenaing party was solely interested in obtaining the subpoenaed documents or other tangible objects and had no interest in commanding the attendance of a witness at a trial or hearing. Although that situation was commonplace, it was a situation not contemplated by Rule 17, which only addresses document production in connection with witness attendance. As the amendment to the heading of Rule 17 makes clear, Rule 17 continues to deal exclusively with witness attendance and attendant document or other tangible object production. However, a new Rule 18 has been adopted that deals exclusively with a subpoenaing party whose interest is solely in obtaining documents or other tangible objects by subpoena without witness attendance. See Advisory Note – October 2013 to M.R. Crim. P. 18.