Fight ‘Em ‘Til We Can’t

This morning’s email brought an unsolicited advertisement for the Child Suggestibility Litigation Library, a $179 collection of materials analyzing two cases from New Jersey and Pennsylvania. It reminded me of a case I worked on as an intern where a 40-something father of two was accused by his 5-year-old daughter of molesting her. He was an upstanding businessman who had been having problems in his marriage and it turned out that his parents-in-law had never liked him and wanted nothing more than to see him out of their daughter’s life. It further turned out that the 5-year-old’s “accusations” originated in a “conversation” with grandma about how the girl and her daddy played together. To a less paranoid or negative mind, what the child said was nothing and no indication of anything illegal or even unusual, but in the mind of someone who was looking for reasons to make a wife want to leave a husband, the child’s words were prima facie evidence of abuse. The case was fascinating to me as an intern because it raised so many difficult issues about parents, children, witness reliability, and the way in which questions suggest can suggest their own answers—especially for 5-year-olds. For example, from my notes on that case:

“Simply asking a child if an event occurred will increase the chance that the child will later say that the event occurred, even if it did not.” Clayton Gillette, Appointing Special Masters to Evaluate the Suggestiveness of A Child-Witness Interview: A Simple Solution to A Complex Problem, 49 St. Louis L.J. 499, 499 (Winter 2005), citing Debra A. Poole & Michael E. Lamb, Investigative Interviews of Children: A Guide for Helping Professionals, 54 (1998). “An interviewer can implant a false ‘memory’ of an event into a child’s mind simply by asking about it.” Id.

I have no idea if the Child Suggestibility Litigation Library would have been helpful for us when we were working on that case, but at least the summary of the contents could be a good starting point for anyone faced with similar issues. [tags]suggestibility, children, youths, witness reliability[/tags]

In response to the last post about the proper procedure for obtaining subpoenas duces tecum, a reader raised two great points.

First, if there is HIPAA-protected information involved, the procedure for getting a subpoena duces tecum is entirely different. Although Montana’s Rules of Criminal Procedure don’t mention it, you almost certainly have to meet the requirements of Title 50, Chapter 16, MCA. This is, in fact, what Montana’s Rules of Civil Procedure clearly state. See 25-20-45(a), MCA.

Second, the last post suggested the prosecutors must always go through a judge to get a subpoena duces tecum, as specified in 46-4-301, MCA. Apparently, this law only applies to “investigative subpoenas,” which are those that law enforcement seek prior to the filing of charges. Once charges are filed, prosecutors are apparently in the same land of ambiguity as defense attorneys in trying to determine the proper procedure under 46-15-101 and 46-15-106.

That raises an additional important question: Do prosecutors in your jurisdiction follow the same procedure as you do in order to obtain a subpoena duces tecum?

What must counsel representing an indigent defendant do to obtain a subpoena duces tecum to get non-medical records, such as witness cell phone records?

This sounds like the kind of question that should be easy to answer, but in Yellowstone County, the required procedure depends on the judge who will be presiding over a given case. Some judges allow defense attorneys to simply ask the clerk of court to issue the subpoena, others will suppress any evidence obtained via this method and instead require a motion asking the judge to issue the subpoena. To no one’s surprise the confusion appears to arise from an ambiguity in the laws that seem govern the subject.

The problems begin with the general law of evidence, which merely requires that a subpoena be issued “under the seal of the court before which attendance is required or in which the issue is pending.” § 26-2-102, MCA. This is the rule regardless of whether the subpoena requires a witness to bring any specific evidence and seems to plainly contemplate what has long been the usual practice in this jurisdiction — subpoenas duces tecum are issued by the clerk of court at the request of the defense attorney and without further involvement of the court.

However, some judges have decided that the statutes governing subpoenas duces tecum in criminal matters require a different procedure. Montana’s Rules of Criminal Procedure first stipulate that “after the filing of charges and upon the request of the prosecuting attorney, the defendant, or the defendant’s attorney, the clerk of the court shall issue subpoenas.” § 46-15-101, MCA. Again, this is consistent w/what has long been standard practice. However, the problem arises in the specific statute that describes subpoenas duces tecum. According to that statute:

The court may direct that the books, papers, documents, or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered into evidence and may upon their production permit the books, papers, documents, or objects, or portions thereof, to be inspected by the parties and their attorneys.

§ 46-15-106 (2), MCA (emphasis added). So what does that mean? When the statute says “the court,” is it referring to the judge or the clerk? Was it intentionally left vague to allow judges to require different procedures? And does the rest of this section contemplate some sort of in camera review of all information obtained via a defense subpoena duces tecum? If defense subpoenas duces tecum must go through a judge, how should they be obtained? Should defense attorneys file ex parte motions asking for such subpoenas, or should the prosecution be in on it, too? Should judges really have this level of control over a defense investigation?

These questions are unique to criminal defense counsel because Montana’s Rules of Criminal Procedure outline still another procedure for the prosecution.

Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are directed to appear before the prosecutor and give testimony and produce books, records, papers, documents, and other objects as may be necessary and proper to the investigation.

§46-4-301, MCA. Thus, the law seems clear that prosecutors must go through a judge in order to obtain a subpoena duces tecum.

Does the fact that the legislature created a specific procedure for the prosecution suggest that it intended the defense to follow a similar procedure?

Although it appears that no Montana court has ruled specifically on the proper procedure for an indigent defendant to use to obtain a subpoena duces tecum (at least none that I can find), the 1991 Commission Comments to Mont. Code Ann. § 46-15-106 indicate that the statute is based largely on the federal rules relating to subpoenas for the production of evidence. Therefore, cases relating to Rule 17(c), Fed. R. Crim. P. should be relevant and persuasive in interpreting Mont. Code Ann. § 46-15-106.

In interpreting the federal rules, courts have said that “the most reasonable procedure” for obtaining a subpoena duces tecum is one that is consistent with the rules governing subpoenas which do not happen to require the production of documents. U.S. v. Venecia, 1997 U.S. Dist. LEXIS 8482, 9-11 (D. Or. 1997). In Montana, such a holding would mean that the most reasonable procedure for defense counsel to obtain a subpoena duces tecum would be to simply ask the clerk of court to issue one. This is the standard procedure by which defense attorneys in Yellowstone County have long operated.

So how does it work in your jurisdiction? Is this even an issue anywhere else in the state?