Criminal Law and Procedure; Service of Subpoenas for the Attendance of Witnesses

Subject:

Criminal Law and Procedure; Service of Subpoenas for the Attendance of Witnesses; G.S. § 15A-801; G.S. § 1A-1, Rule 45

Requested By:

Howard M. Livingston, Director Police Information Network

Questions:

(1)

Can a subpoena compelling the attendance of an individual to a state court proceeding be served by a law enforcement agency that does not hold the original subpoena?

(2)

Can the sheriff’s department of one county send a message over the Police Information Network to a second county, where the individual is known to be, asking the sheriff’s department of that county to notify the individual to appear in a state court proceeding in the county where the subpoena was originally issued?

(3)

Can the sheriff’s department of a county send a message over the Police Information Network to an out-of-state law enforcement agency, where the individual is known to be, asking that the out-of-state law enforcement agency notify the individual to whom the subpoena is directed to appear in a North Carolina court proceeding in the county where the subpoena was issued?

Conclusions:

(1)

Yes.

(2)

Yes.

(3)

No.

This opinion deals with subpoenas for the attendance of witnesses only (G.S. § 15A-801 and

G.S. § 1A-1, Rule 45(e)). It does not deal with subpoenas for the production of documentary evidence with (G.S. § 15A-802 and G.S. § 1A-1, Rule 45(e)). Service of a subpoena for the production of documentary evidence in civil and criminal proceedings may be made only by the delivery of a copy to the person named therein or by registered or certified mail, return receipt requested. This is expressly stated in Rule 45(e). See also Vaughn v. Broadfoot, 267 N.C. 691, 149 S.E. 2d 37 (1966). Subpoenas of this type are not susceptible to transmission over the Police Information Network.

A subpoena for the attendance of a witness is a process for the purpose of compelling the attendance of the person to whom it is directed in connection with a pending action or proceeding. It must be within the scope of the authority of the person or body issuing it. 97 C.J.S., Witnesses §§ 20 and 21. A subpoena issued in excess of the power of the authority issuing it is a nullity. State v. Black, 232 N.C. 154, 59 S.E. 2d 621 (1950). The right of a criminal defendant to subpoena witnesses to compel their attendance at criminal proceedings against him is a basic ingredient of the right to present a defense and is a fundamental element of due process of law. State v. Wells, 290 N.C. 485, 226 S.E. 2d (1976).

Assuming that the subpoena is issued by a court with the jurisdiction and authority to issue it, the subpoena must then be served according to the requirements of the pertinent civil and criminal procedure statutes. Under the provisions of G.S. § 15A-801, the presence of a person as a witness in a criminal proceeding may be obtained by subpoena issued in the manner provided in G.S. § 1A-1, Rule 45. Under the provisions of G.S. § 1A-1, Rule 45(e):

All subpoenas may be served by the sheriff, by his deputy. . . . Service of a subpoena for the attendance of a witness may be made by telephone communication with the person named therein only by a sheriff, his deputy, . . . or by delivery of a copy to the person named therein or by registered or certified mail, return receipt requested, by any person authorized by this section to serve subpoenas. Personal service shall be proved by return or a sheriff, his deputy, . . . making service. . . . Service by telephone communication shall be proved by return of the process officer, noting the method of service. . . . (Emphasis added.)

Pursuant to Rule 45(a), a subpoena for the attendance of a witness must be signed by the party or his attorney who requested the subpoena.

In either a civil or a criminal proceeding, the provisions of Rule 45(e) must be strictly followed when the subpoena is served. Any sheriff can serve a copy of a subpoena to attend a court proceeding. Therefore, any sheriff who has a copy of the actual subpoena can lawfully serve it. Actual possession of the original subpoena is not required. However, because a subpoena and a copy of a subpoena must be signed by the person requesting it, a copy of a subpoena cannot be sent from one sheriff’s department to another by message over the Police Information Network.

An alternative method available under Rule 45(e) is service by telephone. Only a sheriff or his deputy may serve an individual using this method. The literal language of Rule 45(e) does not preclude the county sheriff’s department holding a lawfully issued subpoena from sending a PIN message to the sheriff’s department of another county in this State where the subpoenaed individual is known to be. The PIN message may request the second sheriff’s department to subpoena, by telephone, the individual to whom the original subpoena is directed. Therefore, the sheriff’s department of one county can send a PIN message directed to a second sheriff’s department of another county, where the subpoenaed individual is, asking the second sheriff’s department to subpoena the individual by telephone to appear in a state court proceeding in the county where the original subpoena was issued.

However, the authority to issue and to serve a subpoena to attend a state court proceeding is coextensive with the jurisdiction of the court issuing it, i.e., coextensive with the boundaries of this State. State v. Black, supra. See also Vaughn v. Broadfoot, supra. A North Carolina State court cannot enforce a subpoena to compel attendance at a North Carolina civil or criminal proceeding unless there are express reciprocal statutes relating to this point, such as the Uniform Act to Secure Attendance of Witnesses Outside North Carolina, Article 43 of Chapter 15A of the General Statute of North Carolina. Statutes of this nature require judicial proceedings and signed judicial order which are not susceptible to transmission to another state law enforcement agency via message over the Police Information Network. Therefore, the sheriff’s department of a county cannot send a PIN message to an out-of-state law enforcement agency, where the individual is known to be, asking the out-of-state law enforcement agency to notify the individual to whom the subpoena is directed to appear in a North Carolina court proceeding in the county where the subpoena was issued.

Rufus L. Edmisten Attorney General

Thomas F. Moffitt Associate Attorney General