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NEW HAMPSHIRE RULES OF CRIMINAL PROCEDURE

ARRAIGNMENT, PLEAS AND PRETRIAL PROCEEDINGS

Rule 17.  Subpoenas

 
   
(a) For Attendance of Witnesses; Form; Issuance. A subpoena for court hearings, depositions or trials may be issued by the clerk of any court or any justice as defined by statute. A notary may issue a subpoena for depositions only. A subpoena shall comply with the form required by statute and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

   (b) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein at the time and place specified therein.

   (c) Service. Service of a subpoena shall be made by reading the subpoena to the person named or by giving that person in hand an attested copy thereof, and by paying or tendering to that person the fee for one day's attendance and the mileage allowed by law. Fees and mileage need not be tendered to the witness upon service of a subpoena issued on behalf of the State or court-appointed counsel.  Witnesses subpoenaed by court-appointed counsel shall be paid and reimbursed through the clerk’s office. Witnesses subpoenaed by the State shall be paid and reimbursed directly by the State. A subpoena may be served by any person who is 18 years of age or older.

   (d) Subpoena for Out-of-State Witnesses. A subpoena for witnesses located outside the state shall be requested by application to the court with subject matter jurisdiction, which may be made ex parte, and shall be issued in accordance with the terms and provisions of law.

   (e) Pro se Defendants Unable to Pay. The court may order that a subpoena be issued for service upon a named witness on an ex parte application of a pro se defendant upon a satisfactory showing that the pro se defendant is financially unable to pay the fees of the witness. If the court orders the subpoena to be issued, the costs incurred by the process and the fees of the witness so subpoenaed shall be paid through the clerk’s office.

   (f) Contempt. Failure to obey a subpoena without adequate excuse may be punishable by contempt of court.

   (g) Motions to Quash. An individual may request that the court quash a subpoena on the grounds of improper service, hardship, or otherwise as provided by law. Notice of the motion must be served on all parties. The court shall notify all parties of any hearing on the motion and the decision.


Comments

   
   
Rule 17(a) derives from RSA 516:1-3. RSA 516:3 provides in pertinent part that any justice may issue writs for witnesses in any pending New Hampshire case. Under this statute, a justice of the peace may issue a subpoena for witnesses, even if the justice is  an attorney for one of the parties. See Hazelton Company v. Southwick Construction Company, 105 N.H. 25 (1963).

   Rule 17(b) permits a party to seek production of books, papers, documents or other objects through the service of a subpoena duces tecum.


   The first sentence of paragraph (c) sets forth the appropriate methods of service and is a consistent restatement of RSA 516:5. This paragraph reflects the state’s statutory exemption from the requirement of tendering witness fees in advance of trial or hearing.  State v. Tebetts, 54 N.H. 240 (1874). Paragraphs (c) and (e) extend this principle to cases in which counsel has been appointed for the defendant or in which a defendant demonstrates an inability to pay the fees and mileage allowed by law.


    Rule 17(d) addresses the summoning of witnesses located outside the state and reflects the procedure for summoning out-of-state witnesses established by the Uniform Act, RSA 613. The rule recognizes the current practice whereby applications to summon out-of-state witnesses may be made ex parte. A party is not required by law or rule to give notice of its intent to summon a witness regardless of whether the witness is located in the state.


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