Journal of the Kansas Association for Justice 13 u CIVIL LITIGATION Can I Get A Witness? by Daniel E. Monnat & Paige A. Nichols Mr. Monnat is a partner in the law Television police series love witnesses: the witness,3 a declaration that the firm of Monnat & Spurrier, Chartered, in tearful mothers, addled addicts, and witness is unavailable for the purpose of Wichita, Kan. He practices in the area of double-dealers all make for exciting admitting the witness’s hearsay,4 or criminal defense. Mr. Monnat received investigation scenes and high drama in enforcement of the subpoena through his undergraduate degree from California the courtroom. But what about the the court’s bench warrant5 or contempt6 State University, San Francisco, and his boring bits that lawyers in criminal powers. But the district court may be law degree from Creighton University. cases have to handle in-between unwilling or unable to remedy a interviewing the witnesses and witness’s absence if the subpoena was Ms. Nichols is a solo practitioner in examining them on the stand? unenforceable in the first place.7 Two Lawrence, Kan. She practices in the area Subpoenaing witnesses, calculating mistakes lawyers sometimes make in of criminal defense. Ms. Nichols received witness reimbursements, and parsing subpoenaing witnesses are failing to her undergraduate degree from Kansas sequestration orders never seem to make reissue subpoenas when a hearing date is State University and her law degree from it into the script. But they are frequently continued and failing to use the Northeastern University. a part of our script here in the real world appropriate method for subpoenaing of criminal-trial practice, and getting out-of-state witnesses. these tasks wrong can wreak havoc in a A subpoena is a court order to attend case. This article will review some of the and testify or produce documents or more quotidian aspects of witness electronic information “at a specified management and offer a few basic time and place” under penalty of reminders to help counsel avoid contempt for failure to comply.8 The potential pitfalls when it comes to subpoena has no legal efficacy beyond subpoenas, witness reimbursement, and that “specified time.” Thus, for instance, witness sequestration. a lawyer who duly subpoenas a witness to a trial that ends in a hung jury, but Calling all witnesses fails to reissue that subpoena before a Kansas law makes subpoenas readily second trial, cannot complain if the available to lawyers: “The clerk must witness fails to appear for the second 9 issue a subpoena, signed but otherwise trial. Under its own “specified” terms, in blank, to a party who requests it.”1 the subpoena to the first trial “expired at Most Kansas lawyers are familiar with the conclusion of the first trial, relieving statutory rules, subpoena forms, and [the witness] of the duty of appearing at local custom in their jurisdictions for the second trial in the absence of subpoenaing witnesses. And most another subpoena indicating 10 witnesses come when called to court. otherwise.” When a hearing or trial When witnesses don’t show up, the date is continued, ensuring the summoning lawyer may seek one of a appearance of witnesses on the new date variety of remedies depending on the — or the availability of a remedy if they circumstances: a continuance of the do not appear — is as simple as issuing proceeding,2 an opportunity to depose updated subpoenas to the witnesses. 14 Journal of the Kansas Association for Justice But what about those witnesses who can sidestep this complicated process by record-keeping purposes, counsel live across the state border or even simply mailing the out-of-state witness a should proceed with caution to ensure farther across the country? Securing Kansas subpoena. After all, service of that the witness is not misled into their attendance is more complicated, subpoenas by return-receipt mail is believing that the subpoena is valid and but can be done so long as counsel starts allowed within Kansas.23 In State v. enforceable.30 early and sees the process through. Hobbs,24 a prosecutor procured the Kansas courts have no jurisdiction to appearance of several out-of-state How much is that witness enforce subpoenas against out-of-state witnesses by mailing Kansas subpoenas in the window? witnesses.11 Consequently, lawyers who to them. On appeal, Defendant Hobbs Under what circumstances counsel wish to secure the appearance of such complained that the State should have may (or must) pay fact witnesses in witnesses must turn to the Uniform Act followed the Uniform Act, and that its criminal cases is not always a simple to Secure Attendance of Witnesses from failure to do so necessitated a reversal of question. The Kansas general subpoena Without State.12 This Act was created to his convictions. Having cited no statute requires that service of a aid consenting states in enforcing authority for this radical remedy, Hobbs subpoena “must, if the subpoena process across state lines.13 All fifty lost his argument. But the Kansas requires a person’s attendance, be states have adopted the Act, making it Supreme Court further appeared to accompanied by the fees for one day’s possible to subpoena anyone in the endorse the State’s manner of service, attendance and the mileage allowed by United States to appear in court in noting briefly that “the purpose of the law.”31 But the Kansas Code of Criminal Kansas.14 The Act has been held to apply Uniform Act is to secure the attendance Procedure eliminates this rule in to both witness subpoenas and of witnesses who are outside the criminal cases: “It shall not be necessary subpoenas duces tecum.15 jurisdiction of the district court. The Act to tender any fee or mileage allowance to To comply with this Act, counsel must has no application when witnesses are any witness when he is served with a first petition the Kansas judge presiding willing to testify irrespective of the subpoena to attend any criminal case over the case to certify under seal of method of process.”25 and give testimony either on behalf of court that (1) there is a criminal Cautious counsel will not rely on this the prosecution or the defendant.”32 On prosecution pending; (2) the witness dicta, for several reasons. First, if an the other hand, counsel who has secured sought to be subpoenaed is a “material out-of-state witness does not appear, an out-of-state subpoena in a criminal witness”16 in the pending prosecution; counsel who relied on an unenforceable case must tender mileage and witness and (3) the witness’s presence will be Kansas subpoena to summon the fees to the out-of-state witness.33 required for a specified number of witness may be denied any remedy for As for witness expenses, Kansas law days.17 If the Kansas judge grants the the witness’s absence.26 Second, a explicitly contemplates “reasonable certificate, counsel must then engage a criminal-defense lawyer who fails to use out-of-pocket expenses.”34 The Kansas lawyer in the witness’s home state (if the Act to ensure an out-of-state Rules of Professional Conduct state that counsel is not licensed there) to present witness’s presence may thereby lawyers “shall not … offer an the certificate to a judge in that state and contribute to his own client’s conviction inducement to a witness that is ask that judge to issue a summons and later be deemed constitutionally prohibited by law.”35 The Comment to ordering the witness to appear at a ineffective.27 Lastly, giving an out-of- this provision explains that “[t]he hearing.18 The judge in the witness’s state state witness the false impression that he common law rule in most jurisdictions must thereafter hold a hearing in that or she is under an enforceable court is that it is improper to pay an state to determine whether (1) the order to appear and testify in Kansas occurrence witness any fee for testifying witness is “material and necessary”;19 (2) raises ethical concerns. “An individual and that it is improper to pay an expert “it will not cause undue hardship20 to summoned by a subpoena — whether a witness a contingent fee.”36 The rule has the witness to be compelled to attend bus driver, a plumber, a grocery store been interpreted to allow prosecutors to and testify” in Kansas; and (3) the laws clerk, a Ph.D., or the head of the most offer immunity or leniency in exchange of Kansas and any other state through powerful corporation in the world — for testimony, as neither of these which the witness might be required to understands that he has received a court inducements is “prohibited by law,”37 pass by ordinary course of travel will order that must be obeyed.”28 A but the rule has not otherwise protect the witness “from arrest and the subpoena represents a “limited but been interpreted by the Kansas service of civil and criminal process.”21 coercive power,” and counsel “assumes appellate courts. If the judge answers all of these an “awesome responsibility when [he or One rule that appears consistent with questions in the affirmative, then the she] brings that power to bear on the Kansas law, and that has been endorsed judge “shall issue” a summons directing lives of average citizens.”29 If counsel is by other jurisdictions and the American the witness to appear and testify confident of the witness’s voluntary Bar Association, is that “fact witnesses in Kansas.22 appearance and wishes to provide the may be reimbursed for expenses Lawyers may wonder whether they witness with a Kansas subpoena for Journal of the Kansas Association for Justice 15 incurred