Rules of Criminal Procedure

Rules of Criminal Procedure  Criminal Procedure Rule 17: Summonses for witnesses

Effective Date: 07/01/1979

(Applicable to District Court and Superior Court)

Table of Contents

(a) Summons

(1) For attendance of witness; form; issuance

A summons shall be issued by the clerk or any person so authorized by the General Laws. 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 time and place specified therein.

(2) For production of documentary evidence and of objects

A summons may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein. The court on motion may quash or modify the summons if compliance would be unreasonable or oppressive or if the summons is being used to subvert the provisions of rule 14. The court may direct that books, papers, documents, or objects designated in the summons be produced before the court within a reasonable time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, objects, or portions thereof to be inspected and copied by the parties and their attorneys if authorized by law.

(b) Defendants unable to pay

At any time upon the written ex parte application of a defendant which shows that the presence of a named witness is necessary to an adequate defense and that the defendant is unable to pay the fees of that witness, the court shall order the issuance of an indigent's summons. The witness so summoned shall be paid in accordance with the provisions of subdivision (c) of this rule. If the court so orders, the costs incurred shall be assessed to the defendant in accordance with the General Laws or the provisions of these rules.

(c) Payment of witnesses

Expenses incurred by a witness summoned on behalf of a defendant determined to be indigent under this rule as well as expenses incurred by a witness summoned on behalf of the Commonwealth, as such expenses are determined in accordance with the General Laws, shall be paid after the witness certifies in a writing filed with the court the amount of his travel and attendance

(d) Service

(1) By whom; manner

A summons may be served by any person authorized to serve a summons in a civil action or to serve criminal process. A summons shall be served upon a witness by delivering a copy to him personally, by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the witness' last known address.

(2) Place of service

(A) Within the Commonwealth

A summons requiring the attendance of a witness at a hearing or a trial may be served at any place within the Commonwealth.

(B) Outside the Commonwealth or abroad

A summons directed to a witness outside the Commonwealth or abroad shall issue and be served in a manner consistent with the General Laws.

(3) Return

The person serving a summons pursuant to this rule shall make a return of service to the court.

(e) Failure to appear

If a person served with a summons pursuant to this rule fails to appear at the time and place specified therein and the court determines that such person did receive actual notice to appear, a warrant may issue to bring that person before the court.

Reporter's notes

The prototype for this rule is found in Fed.R.Crim.P. 17. See Massachusetts and Federal Rule of Civil Procedure 45; Rules of Criminal Procedure (U.L.A.) Rule 731 (1974). Rule 17 is for the most part in accord with prior Massachusetts law. Statutes which are consistent with this rule--e.g., G.L. c. 233, §§ 5-6 , which authorize sanctions for a witness' failure to comply with a summons--are to remain in effect. 

“Summons” as used in this rule (and Mass.R.Crim.P. 35[b]) is intended to refer to what has traditionally been expressed by the terms “summons” and “subpoena.” 

The right of a defendant to have process issued for the attendance of necessary witnesses is founded in the Constitution: 

[I]t is the Sixth Amendment itself that in terms guarantees ‘compulsory process for obtaining witnesses in [the accused's] favor,’ and this is paralleled in substance by article 12 of our Declaration of Rights. 

Blazo v. Superior Court, 366 Mass. 141, 145 (1974). A defendant's right to have summonses issued on his behalf may also be grounded in the sixth amendment right of confrontation. 

Subdivision (a)

This subdivision is drawn with little change from Fed.R.Crim.P. 17(a), (c); accord Rules of Criminal Procedure (U.L.A.) rule 731(a), (c) (1974). 

Subdivision (a)(1). General Laws c. 233, § 1 provides that persons in addition to the clerk of court, i.e., notaries public and justices of the peace, may issue summonses for witnesses in criminal cases but only “upon request of the attorney general, district attorney or other person who acts in the case in behalf of the Commonwealth or of the defendant.” The proceedings contemplated by this subdivision include depositions to perpetuate testimony pursuant to Mass.R.Crim.P. 35

Subdivision (a)(2). The provision of this subdivision authorizing the court to order the production of evidence prior to its use at trial or in other judicial proceedings is not intended to permit the use of summonses to subvert the discovery rule, Mass.R.Crim.P. 14. Rather, it is to permit the court to avoid delay where the production of many books, papers, documents, or other objects would delay the proceedings if not ordered until their commencement. 

Subdivision (b)

The subdivision, loosely modeled upon Fed.R.Crim.P. 17(b), is drafted in response to the Supreme Judicial Court's decision in Blazo v. Superior Court , 366 Mass. 141 (1974). There the court held that when indigency and the necessity for witnesses are shown, a defendant is to have the witnesses summoned at the expense of the Commonwealth, suggesting the following procedure: 

[A] defendant believing himself entitled will apply to the competent judge--ex parte if the defendant should so desire--supporting his application by affidavit showing his inability to pay the fees involved, setting out the names and addresses (if known) of the persons to be summoned, and stating why their attendance is necessary to an adequate defence. The judge may require the submission of further data. 

Id. at 145-46 (footnote omitted). The court further explained that the reason for permitting ex parte application 

is that, just as a defendant able to foot the costs need not explain to anyone his reasons for summoning a given witness, so an impecunious defendant should be able to summons his witnesses without explanation that will reach the adversary. Id. at 145 n. 8. 

There is a significant difference between this subdivision and its counterpart under the federal rule. The summons that is to be issued under this rule is a prosecutor's summons, G.L. c. 277, § 68 , and not a court summons, G.L. c. 233, § 1. This is because G.L. c. 233, § 3 provides that witnesses summoned on behalf of the defendant are entitled to prepayment of some of their expenses. If this requirement were applicable to witnesses for indigent defendants, an added burden would be imposed on the court clerks. Therefore, witnesses for indigent defendants are to be summoned by the Commonwealth pursuant to G.L. c. 277, §§ 68-69 , and will not require prepayment. This procedure parallels that of Rules of Criminal Procedure (U.L.A.) Rule 731(b) (1974). Compare Fed.R.Crim.P. 17(b), (d). 

Subdivision (c)

The expenses involved in securing the attendance of a witness on behalf of a defendant or the Commonwealth in a criminal proceeding consist of the fees of the officer serving the process and fees to the witness for travel and attendance. G.L. c. 233, §§ 2-3 c. 262, §§ 8(B)(3), 29 

General Laws c. 262, § 29 requires that a witness certify in writing the amount of his travel and attendance costs and serves as a basis for this subdivision. The statute additionally provides that where the witness has been summonsed by the Commonwealth, the certificate must be accompanied by a voucher signed by the attorney general or the district attorney stating that such fees are due the witness for his attendance. This rule adds witnesses summonsed by indigent defendants to this category and provides for the payment of their expenses in the same manner as the expenses of Commonwealth witnesses are paid. Where the district attorney is prosecuting the case, G.L. c. 12, § 24 (as amended, St.1978, c. 478, § 10) authorizes the payment of expenses of government-summonsed witnesses from Commonwealth funds. See G.L. c. 213, § 8 , which the Supreme Judicial Court in Blazo stated would authorize county payment (now the Commonwealth, § 8 as amended, St.1978, c. 478, § 127) of witnesses ordered to attend on behalf of an indigent defendant. Blazo v. Superior Court, supra, at 146. 

Under this rule, all witnesses are to be paid established witness fees. This is a departure from prior law, G.L. c. 277, § 69, which required prosecution witnesses to attend without pay unless the court directed the payment of their fees and expenses. 

Subsection (d)

The first sentence of subdivision (d)(1) embodies the substance of Mass.R.Civ.P. 45(c), which permits service “by any person who is not a party and is not less than 18 years of age.” Compare Fed.R.Civ.P. 45(c) with Fed.R.Crim.P. 17(d). This procedure accords with that under G.L. c. 233, § 2 , which provides that a summons for a witness may be served by an officer qualified to serve civil process or by some other disinterested person. Added is provision for service of summonses by persons authorized to serve criminal process. The rule would appear to allow service by counsel for the defendant or Commonwealth, although this practice has been criticized as perhaps “unwise.” 8 MASS. PRACTICE SERIES (Smith & Zobel) Reporter's Notes at 136 (1977); compare Supreme Judicial Court Rule 3:22, incorporating ABA Canons of Professional Ethics, Canon 19 (1972); ABA Code of Professional Responsibility DR 5-102, EC 5-9, 5-10 (1970). 

The manner of service under this rule is for the most part consistent with procedure under prior law and the civil rules,  G.L. c. 233, § 2 ;  Mass.R.Civ.P. 45(c), but adds that a summons may be served by mail. This last means of service is not available in cases of witnesses summonsed by non-indigent defendants, since tender or payment of fees to the witness is a prerequisite to compelling his attendance. G.L. c. 233, § 3 

Subdivision (d)(2)(A) is taken from the second sentence of Mass.R.Civ.P. 45(e)

General Laws c. 233, §§ 13A-13C ; otherwise known as the Uniform Law to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, provides a simple solution to the problem of obtaining out-of-state witnesses to appear in criminal proceedings. As long as the subject jurisdiction has adopted the Act the court will be able to secure attendance. Notwithstanding the provisions of G.L. c. 233, §§ 13A-13C and c. 277, § 66 , it has been stated that the right of a defendant to compulsory process for witnesses who are necessary to his defense does not by statute automatically extend beyond the territory of the Commonwealth. Commonwealth v. Dirring , 354 Mass. 523 (1968). Accord Commonwealth v. Edgerly , 6 Mass. App. Ct. 241 (1978). 

Even though a defendant may not have the statutory right to compulsory process for necessary witnesses, the Constitution requires that the state make a good faith effort to obtain the presence of certain witnesses. In addition to the Uniform Act, state courts should avail themselves of two other avenues to secure the attendance of witnesses. The court in Barber v. Page , 390 U.S. 719 (1968), determined that where the defendant has a constitutional right to confront a witness, a state must seek his attendance via: (1) 28 U.S.C. § 2241(c)(5) (1971), which gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutors in the case of the prospective witnesses currently in federal custody; and (2) the issuance of a writ of habeas corpus ad testificandum by state courts. The existing policy of the United States Bureau of Prisons is to permit federal prisoners to testify in state court criminal proceedings pursuant to the issuance of such writs. 

With respect to witnesses who are citizens or residents of the United States, but currently beyond its jurisdiction, the Court in Mancusi v. Stubbs ,408 U.S. 204 (1972), enunciated the limitations of the applicability of 28 U.S.C. § 1783 (1966), which provides in pertinent part:

(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice

With respect to § 1783, the court stated: 

We have been cited to no authority applying this section to permit subpoena by a federal court for testimony in the state felony trial, and certainly the statute on its face does not appear to be designated for that purpose. Id. at 212. (Footnote omitted.) The Mancusi court concluded that Tennessee was powerless to compel the attendance of the absent witness, then a resident of Sweden, and that, therefore, the state had not denied the respondent the right of confrontation as guaranteed by the sixth and fourteenth amendments.

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