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Subpoenaing Witnesses and Documents in Colorado Criminal Cases
Subpoenaing witnesses, documents, or other tangible objects can be an important aspect in prosecuting or defending criminal cases in Colorado courts. Broadly speaking, a subpoena is a document issued under the authority of a court that commands a person or entity not a party to the case to perform or complete some action. For example, subpoenas are most commonly used to compel and individual to appear in court and give testimony or to require an individual or business entity to produce documents or other information that is relevant to the case.
In Colorado criminal case, the specific authority for issuing a subpoena depends on what type of court the criminal case is pending in. In particular, there are generally two types of court in Colorado that a criminal case will be prosecuted in, municipal court or Colorado state court. If the charged offense is a municipal offense, then the case will be handled in municipal court and the Colorado Municipal Court Rules of Procedure (“C.M.C.R.”) will govern the procedures for issuing a subpoena.
In contrast, if the charged offense is one under a state statute, then the case will be handled in Colorado state court. Notably, Colorado state courts have multiple levels within the state court system that vary depending on the seriousness of the offense. Felony cases are generally prosecuted in district court while misdemeanors are prosecuted in county court. Regardless of the level of court, if the offense is being prosecuted in Colorado state court then the Colorado Rules of Criminal Procedure (“Crim. P.”) will govern the subpoena process.
Rules Governing the Subpoena Process in Colorado Criminal Courts
While the specific rules governing subpoenas in Colorado criminal courts will depend on whether the case is being prosecuted in municipal court or Colorado state court, the overall subpoena process is highly similar. More specifically, for criminal offenses being prosecuted in municipal court, C.M.C.R. 217 will apply. In contrast, for criminal offenses being prosecuted in Colorado state courts, Crim. P. 17 will apply. However, the rules employ similar language and have similar requirements for issuing a subpoena.
In particular, for issuing a subpoena commanding just the appearance of a witness, and not requiring the production of document or other tangible objects, both Colorado state court and municipal courts require that the subpoena:
– Be issued and signed by the clerk of the court in the pending case or by counsel who has appeared in the case;
– State the name of the court and the title, if any, of the proceedings; and
– Specify the time and place that the person is commanded to appear and give testimony.
See Crim. P. 17(a); C.M.C.R. 217(a). Notably, if a party is representing oneself pro se then, if the case is in Colorado state court, the pro se party must file a motion with the presiding court asking the court to issue a subpoena and state the reasons why a subpoena is necessary. In contrast, if the case is in municipal court then the pro se party need only request a subpoena in blank from the court or clerk of court and then fill in the blanks before it is served. See Crim. P. 17(b); C.M.C.R. 217(a).
For subpoenas requiring the production of documents or tangible objects, the same general requirements discussed above also apply. However, instead of directing that a person attend and give testimony, production subpoenas direct a person or entity to produce documents or other objects at a specific place and time, usually in court either before trial or at trial.
For production subpoenas, if the case is pending in Colorado state court, then the subpoena can be issued in the same manner as a normal subpoena commanding the appearance of a witness. However, once the subpoena is issued, a copy of the subpoena must promptly be served on opposing counsel to allow opposing counsel to move the court to quash or modify the subpoena to the extent it is unreasonable or oppressive. See Crim. P. 17(c).
If the case is pending in municipal court, then a production subpoena may only be issued upon order of the court. Accordingly, in municipal court, a party must file a motion for the court to issue a subpoena commanding the production of documents or other tangible objects and, unlike a subpoena simply commanding the appearance of a witness, a party cannot issue one themselves. See C.M.C.R. 217(b).
Notably, subpoenas can require that a person both appear and testify as well as produce documents. That is, production subpoenas and general subpoenas are not mutually exclusive; one subpoena can require both production of documents and testimony.
Serving a Subpoena Issued in a Colorado Criminal Case
Once a subpoena has been appropriately issued in a pending case in Colorado state court or municipal court, the subpoena must be served on the person or entity to whom it is directed. Service of a subpoena is generally required to comport with traditional notions of personal jurisdiction and due process.
Accordingly, the subpoena must be personally served on the subpoenaed individual or entity. This can be done by a police officer, sheriff, process server, or anybody else who is 18 years old and not a party to the legal action. Alternatively, the individual or entity may voluntarily waive service such that personal service does not have to occur. Further, because Colorado courts only have jurisdiction within the state of Colorado, subpoenas issued from a Colorado court must be served within the state in order to be effective.
To the extent an out of state witness needs to be subpoenaed, the authority of the state in which the witness resides will need to be invoked. Colorado statutes C.R.S. § 16-9-201, et seq., provide a mechanism for subpoenaing an out of state witness. Under those statutes, a party needing to subpoena an out-of-state witness can request the presiding judge to issue a certificate stating why the witness is necessary and how many days the witness will be needed in Colorado for the case. The certificate may then be taken to a court in the county where the witness resides which, in turn, can issue a subpoena commanding appearance in Colorado.
Notably, if an out-of-state witness is compelled to attend court in this manner the witness will be immune from arrest or service of a civil lawsuit for matters that arose before the witness’s entrance into Colorado. See C.R.S. § 16-9-204.
Witness Fees for Subpoenaing a Witness in Colorado Criminal Courts
Generally, when a witness appears in court under a subpoena to testify or produce documents, that witness is entitled to a fee for the mileage spent traveling to and from their place of residence to the place named in the subpoena. However, in order to be entitled to those fees the witness must be under subpoena and claim their fees under oath. Additionally, where a witness resides outside the county of trial, the presiding court may order that the fee be tendered to the witness concurrently with the subpoena. See C.R.S. § 13-33-103(1), (5); Crim. P. 17(e). See also C.R.S. § 16-9-203 (governing fees for a witness residing in another state).
Further, for criminal cases in Colorado that are not in municipal court or Denver county court, any witness fee costs shall be paid by the state when the defendant is acquitted or when the defendant is convicted and the court determines he is unable to pay. Accordingly, where a case is pending in Colorado state court, with the exception of Denver county court, in order for a defendant to be responsible for witness fees the defendant must be convicted, must not be indigent, and the witness must have made a claim for fees under oath. See C.R.S. § 13-33-102(5); C.R.S. § 18-1.3-701(2)(e); People v. McCabe, 546 P.2d 1289 (Colo. App. 1975).
Notably, as part of witness fee costs, expert witnesses can be awarded additional compensation beyond mileage as determined by the court. See C.R.S. § 13-33-102(4); Catlin v. Tormey Bewley Corp., 219 P.3d 407 (Colo. App. 2009).
Failure to Obey a Subpoena Authorized from a Colorado Criminal Court
Failure to appear in court or otherwise obey a subpoena that has been properly issued and served under the authority of a Colorado criminal court may result in the subpoenaed party being held in contempt. If the subpoenaed party is held in contempt, it can result in a bench warrant being issued for the individual’s arrest, monetary sanctions against the individual, and potential jail time as punishment for violating the court’s orders. See Crim. P. 17(h); C.M.C.R. 217(d); People v. Razatos, 699 P.2d 970 (Colo. 1985).
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.