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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Criminal Rule 17 -- Subpoena
-- Procedures for subpoenaing out of state witnesses.
State v. Moesle
, 181 Ohio App. 3d 696,
– Denial of compulsory process for trial court not to issue a capias warrant for the arrest of an accountant under a subpoena duces tecum to produce company tax records. Show cause hearing after the trial was not an appropriate response. While the defense did not make a proffer as to what testimony and records would have shown, the purpose of the subpoena was apparent from the context.
In re Subpoena Duces Tecum Served Upon Attorney Potts
, 100 Ohio St. 3d 97,
-- Syllabus: "1) Pursuant to Crim. R. 17(C), when deciding a motion to quash a subpoena duces tecum requesting the production of documents prior to a trial, a trial court shall hold an evidentiary hearing. At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing, (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition"' (
United States v. Nixon
, 418 U.S. 683, 699-700...followed. (2) When a party claims that subpoenaed documents are privileged, a trial court shall conduct an in-camera inspection of the documents in question before ruling on any claims of privilege."
State v. Boschulte
, Franklin App. No. 02AP-1053,
-- A grand jury subpoena may compel production of original documents and their retention for purposes of forensic examination unless compliance would be unreasonable or oppressive.
Akron v. Hockman
(2001), 144 Ohio App. 3d 262 -- A court may not quash the subpoena of a wife reluctant to testify against her husband because it would jeopardize their marriage and his job as a police officer. Crim. R. 17(C) only provides for motions to quash subpoenas for documentary evidence.
State v. Busch
76 Ohio St. 3d 613,
, has been overruled by the General Assembly.
State v. Antill
(1964), 176 Ohio St. 61 permits courts to compel a competent spouse to testify.
State v. Lentz
, Lucas App. No. L-01-1461,
-- Prosecutor wished to create an "expenditure analysis" demonstrating defendant's income from presumably illegal sources. Subpoena duces tecum was issued for fee agreement with defense counsel and billing records. Trial court overruled motion to quash and ordered records produced for in camera inspection. (1) Records are not per se privileged. (2) In a prior appeal the contempt finding was set aside on the finding counsel acted in good faith in an unsettled area of the law. (3) In second appeal following remand prior ruling on motion to quash was the law of the case.
State v. Leonard
, 157 Ohio App. 3d 653,
, ¶11-13 -- Crim. R. 17 authorizes a court to issue a subpoena only to compel the attendance of a witness or production of documents at proceedings over which the trial court has jurisdiction. It does not authorize use of subpoenas for production or appearance at the prosecutor's office as a means of discovery. But remedial action is not required when the defendant has not been prejudiced.
State v. Kvasne
, 169 Ohio App. 3d 167,
, ¶38-41 -- A police officer appeared in response to a defense subpoena but was released for the day and did not return. Defendant was not entitled to a bench warrant because the subpoena had not been personally served on the officer.
Cleveland v. Stitt
, 140 Ohio Misc. 2d 1,
-- Court quashes subpoena to city law director in misdemeanor prosecution of a police lieutenant. A prosecutor should avoid being a witness and high public officials should not be brought into court on the mere whim of opposing counsel.
In re Grand Jury
(1996), 76 Ohio St. 3d 236 -- Applying
Polikoff v. Adam
(1993), 67 Ohio St. 3d 100, the denial of a motion to quash a grand jury subpoena duces tecum is not a final appealable order. Grand jury proceedings existed at common law, and thus do not qualify as special proceedings.
State v. Castle
(1994), 92 Ohio App. 3d 732, 734 -- Valid service of summons was completed when subpoenas were sent to parties' "usual place of residence" and the record indicated actual knowledge of the subpoenas and the consequences which could arise if they were not obeyed.
State v. Denis
(1997), 117 Ohio App. 3d 442 -- Domestic violence defendant wished to introduce court records pertaining to complaints filed against him by ex-wife and her current husband. Court quashed subpoenas. Held to violate defendant's right to compulsory process. Records were relevant to establish bias, and also bore on credibility of the testimony of alleged victim.
Dayton v. Turner
(1984), 14 Ohio App. 3d 304 -- Headnote: "Where materials are subpoenaed from the internal affairs division of a police department, a generalized assertion of privilege on the basis of confidentiality must yield to a demonstrated need for such materials for use as evidence at a criminal trial. Also see
State v. Bundy
(1985), 20 Ohio St. 3d 51;
State v. Ushery
(1976), 2 Ohio Ops. 3d 162.
Columbus v. Robinson
(1986), 33 Ohio App. 3d 151 -- Headnote: "Defense counsel may not use a subpoena duces tecum directed to a police-witness' personnel files as a discovery device to ascertain whether there might be some information therein useful to the defense in cross-examination of the witness."
State v. Geis
(1981), 2 Ohio App. 3d 258 -- When a defendant serves a subpoena duces tecum on a newsperson and that person seeks to have the subpoena quashed, the court must conduct an in camera inspection of the material under subpoena to determine what may be protected under
State v. Spencer
(1998), 126 Ohio App. 3d 335 -- Subpoena duces tecum was served on physician concerning steroid prescriptions. Majority holds that the physician-patient relationship was not established where communication was related to fraud or criminal activity. Thus, the privilege is not available.
In re Meirhoff
(1999), 99 Ohio Misc. 2d 17 -- Police officer found guilty of indirect criminal contempt after failing to appear pursuant to a subpoena. Unanswered call to the courthouse before business hours was not enough to negate element of intent.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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