Subpoena Duces Tecum in NY Criminal Cases
Pursuant to the CPL, both the Assistant District Attorney (“ADA”) and the Defense Counsel, and the Court can issue a subpoena duces tecum to obtain potential physical evidence. A subpoena duces tecum is a subpoena that requires the witness to produce specified evidence in court. A subpoena duces tecum is a powerful tool as it is not limited to evidence that is discoverable as Brady or Rosario material.
The definition of a subpoena duces tecum is found in CPL Article 610(3):
As used in this article, “subpoena” includes a “subpoena duces tecum.” A subpoena duces tecum is a subpoena requiring the witness to bring with him and produce specified physical evidence.
The right to to issue a subpoena duces tecum is found in CPL 610.20:
1. Any criminal court may issue a subpoena for the attendance of a witness in any criminal action or proceeding in such court.
2. A district attorney, or other prosecutor where appropriate, as an officer of a criminal court in which he is conducting the prosecution of a criminal action or proceeding, may issue a subpoena of such court, subscribed by himself, for the attendance in such court or a grand jury thereof of any witness whom the people are entitled to call in such action or proceeding.
3. An attorney for a defendant in a criminal action or proceeding, as an officer of a criminal court, may issue a subpoena of such court, subscribed by himself, for the attendance in such court of any witness whom the defendant is entitled to call in such action or proceeding. An attorney for a defendant may not issue a subpoena duces tecum of the court directed to any department, bureau or agency of the state or of a political subdivision thereof, or to any officer or representative thereof. Such a subpoena duces tecum may be issued in behalf of a defendant upon order of a court pursuant to the rules applicable to civil cases as provided in section twenty-three hundred seven of the civil practice law and rules.
The right to posses the material obtained via a subpoena duces tecum is found in CPL 610.25:
1. Where a subpoena duces tecum is issued on reasonable notice to the person subpoenaed, the court or grand jury shall have the right to possession of the subpoenaed evidence. Such evidence may be retained by the court, grand jury or district attorney on behalf of the grand jury.
2. The possession shall be for a period of time, and on terms and conditions, as may reasonably be required for the action or proceeding. The reasonableness of such possession, time, terms, and conditions shall be determined with consideration for, among other things,
(a) the good cause shown by the party issuing the subpoena or in whose behalf the subpoena is issued,
(b) the rights and legitimate needs of the person subpoenaed and
(c) the feasibility and appropriateness of making copies of the evidence.
The cost of reproduction and transportation incident thereto shall be borne by the person or party issuing the subpoena unless the court determines otherwise in the interest of justice. Nothing in this article shall be deemed to prohibit the designation of a return date for a subpoena duces tecum prior to trial. Where physical evidence specified to be produced will be sought to be retained in custody, notice of such fact shall be given the subpoenaed party. In any case where the court receives or retains evidence prior to trial, it may, as may otherwise be authorized by law, grant the issuing party a reasonable opportunity to inspect such evidence.
The recipient of a subpoena duces tecum can move for a protective order to limit or deny the subpoena duces tecum pursuant to CPL 240.50. The issuing party must establish that the material sought in the subpoena is reasonably likely to contain information highly relevant to the key issues at trial. Ideally, you would want to state that the subpoena duces tecum will likely lead to exculpatory material that may exonerate your client. The facts contained in the body of the subpoena must support this contention. Further, that the subpoena is the only mechanism that allows the defense to obtain the material as it is not permitted by discovery. If the material can be obtained by discovery by CPL 240 then the Courts will not allow a subpoena duces tecum to be issued.
Defense counsel may not issue a subpoena duces tecum directed to any statement department, bureau, agency , or political subdivision. Counsel must comply with CPLR 2307 for this type of subpoena. CPL 610.20(2).
Todd A. Spodek is a NY Criminal Lawyer with Spodek Law Group P.C.