If you are a witness in a pending criminal case and you receive (after the charges have been filed) a subpoena from the prosecutor purporting to require your presence not only at the trial or at a deposition but at a “pre-trial conference” or similar pow-wow with the prosecutor, be advised that the part of the subpoena purporting to require your presence at a pre-trial conference is complete and utter bullshit (at least in Indiana and Kentucky). The prosecutor is himself breaking the law by issuing such a subpoena, and in his hypocritical zeal to incarcerate the defendant is relying on your ignorance of the law and the apparent authority of his office in order to secure an unfair advantage over the defendant at trial. If you receive such a subpoena, please notify the defendant’s attorney immediately.
[If you are a detective or police officer and receive such a subpoena from a defense attorney, you already know what to do. Try not to laugh as you call up the prosecutor to report the defense attorney's professional misconduct.]
If you are a prosecutor and I find out that you’ve intentionally issued such a subpoena, be advised that I will report such professional misconduct to the attorney Disciplinary Commission, as appears to be my obligation under Indiana Rule of Professional Conduct 8.3(a).
All prosecutors who aren’t incompetent know better. Here in St. Joseph County the subpoenas issued by the prosecutor’s office will typically, along with requiring the witness’ presence at trial, “request” the witness’ presence at a pre-trial conference. That’s okay, although it seems the better practice would be to request the witnesses’ presence in a letter separate from the subpoena, since subpoenas by their nature are compulsory. The Office of neighboring Elkhart County Prosecuting Attorney Curtis Hill, on the other hand, has apparently, until very recently, been rife with a very different and illegal practice. Here is the text of a letter (omitting only the name of my client) dated April 20, 2010 which I received from Curtis Hill’s Chief Deputy Prosecutor during the course of the criminal case I discussed in my last post:
Re: Form Language and Subpoenas
Dear Mr. Kindley,
Please be advised that Mr. Hill is in receipt of your letter of April 15, 2010, wherein you bring to our attention the fact that members of our office have issued Subpoenas containing inappropriate language. While this Subpoena form is available to all Deputy Prosecuting Attorneys within our office, I have already learned that it is not actually used by all Deputy Prosecuting Attorneys. Nevertheless, the subject Subpoena form is inappropriate and we have already taken corrective action to cease and desist its use.
In addition to this corrective measure, we are also looking into this matter further to determine how the language indicating a requirement to appear for a pre-trial conference became a part of the Subpoena form which was served upon the witnesses in the case of State of Indiana vs. _____________. Nevertheless, rest assured that there will be no further requirements on any Subpoena issued by our office that any person appear for a pre-trial conference as same is clearly contrary to the statutory powers that we, as attorneys, are granted by the laws of the State of Indiana. I encourage you to contact me to discuss this matter any further.
Vicki Elaine Becker