(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972; Apr. 22, 1974, eff. Dec. 1, 1975; Pub. L. 94–64, § 3(29), July 31, 1975, 89 Stat. 375; Apr. 30, 1979, eff. Dec. 1, 1980; Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 23, 2008, eff. Dec. 1, 2008.)
Notes of Advisory Committee on Rules—1944
Note to Subdivision (a). This rule is substantially the same as Rule 45(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].
Note to Subdivision (b). This rule preserves the existing right of an indigent defendant to secure attendance of witnesses at the expense of the Government, 28 U.S.C. [former] 656 (Witnesses for indigent defendants). Under existing law, however, the right is limited to witnesses who are within the district in which the court is held or within one hundred miles of the place of trial. No procedure now exists whereby an indigent defendant can procure at Government expense the attendance of witnesses found in another district and more than 100 miles of the place of trial. This limitation is abrogated by the rule so that an indigent defendant will be able to secure the attendance of witnesses at the expense of the Government no matter where they are located. The showing required by the rule to justify such relief is the same as that now exacted by 28 U.S.C. [former] 656.
Note to Subdivision (c). This rule is substantially the same as Rule 45(b) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].
Note to Subdivision (d). This rule is substantially the same as Rule 45(c) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. The provision permitting persons other than the marshal to serve the subpoena, and requiring the payment of witness fees in Government cases is new matter.
Note to Subdivision (e)(1). This rule continues existing law, 28 U.S.C. [former] 654 (Witnesses; subpoenas; may run into another district). The rule is different in civil cases in that in such cases, unless a statute otherwise provides, a subpoena may be served only within the district or within 100 miles of the place of trial, 28 U.S.C. [former] 654; Rule 45(e)(1) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].
Note to Subdivision (e)(2). This rule is substantially the same as Rule 45(e)(2) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. See Blackmer v. United States, 284 U.S. 421, upholding the validity of the statute referred to in the rule.
Note to Subdivision (f). This rule is substantially the same as Rule 45(d) of the Federal Rules of Civil Procedure [28 U.S.C, Appendix].
Note to Subdivision (g). This rule is substantially the same as Rule 45(f) of the Federal Rules of Civil Procedure [28 U.S.C, Appendix].
Notes of Advisory Committee on Rules—1948 Amendment
The amendment is to substitute proper reference to Title 28 in place of the repealed act.
Notes of Advisory Committee on Rules—1966 Amendment
Subdivision (b).—Criticism has been directed at the requirement that an indigent defendant disclose in advance the theory of his defense in order to obtain the issuance of a subpoena at government expense while the government and defendants able to pay may have subpoenas issued in blank without any disclosure. See Report of the Attorney General’s Committee on Poverty and the Administration of Criminal Justice (1963) p. 27. The Attorney General’s Committee also urged that the standard of financial inability to pay be substituted for that of indigency. Id. at 40–41. In one case it was held that the affidavit filed by an indigent defendant under this subdivision could be used by the government at his trial for purposes of impeachment. Smith v. United States, 312 F.2d 867 (D.C.Cir. 1962). There has also been doubt as to whether the defendant need make a showing beyond the face of his affidavit in order to secure issuance of a subpoena. Greenwell v. United States, 317 F.2d 108 (D.C.Cir. 1963).
The amendment makes several changes. The references to a judge are deleted since applications should be made to the court. An ex parte application followed by a satisfactory showing is substituted for the requirement of a request or motion supported by affidavit. The court is required to order the issuance of a subpoena upon finding that the defendant is unable to pay the witness fees and that the presence of the witness is necessary to an adequate defense.
Subdivision (d).—The subdivision is revised to bring it into conformity with 28
U.S.C. § 1825
Notes of Advisory Committee on Rules—1972 Amendment
Subdivisions (a) and (g) are amended to reflect the existence of the “United States magistrate,” a phrase defined in rule
Notes of Advisory Committee on Rules—1974 Amendment
Subdivision (f)(2) is amended to provide that the court has discretion over the place at which the deposition is to be taken. Similar authority is conferred by Civil Rule
. See C. Wright, Federal Practice and Procedure: Criminal § 278 (1969).
Ordinarily the deposition should be taken at the place most convenient for the witness but, under certain circumstances, the parties may prefer to arrange for the presence of the witness at a place more convenient to counsel.
Notes of Committee on the Judiciary, House Report No. 94–247; 1975 Amendment
A. Amendments Proposed by the Supreme Court. Rule 17 of the Federal Rules of Criminal Procedure deals with subpoenas. Subdivision (f)(2) as proposed by the Supreme Court provides:
The witness whose deposition is to be taken may be required by subpoena to attend at any place designated by the trial court.
B. Committee Action. The Committee added language to the proposed amendment that directs the court to consider the convenience of the witness and the parties when compelling a witness to attend where a deposition will be taken.
Notes of Advisory Committee on Rules—1979 Amendment
Note to Subdivision (h). This addition to rule
is necessary in light of proposed rule
.2, which deals with the obtaining of statements of government and defense witnesses.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1993 Amendment
The Rule is amended to conform to the Judicial Improvements Act of 1990 [P.L. 101–650, Title III, Section
321] which provides that each United States magistrate appointed under section
, United States Code, shall be known as a United States magistrate judge.
Committee Notes on Rules—2002 Amendment
The language of Rule
has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below.
A potential substantive change has been made in Rule
; the word “data” has been added to the list of matters that may be subpoenaed. The Committee believed that inserting that term will reflect the fact that in an increasingly technological culture, the information may exist in a format not already covered by the more conventional list, such as a book or document.
has been amended to recognize the contempt powers of a court (other than a magistrate judge) and a magistrate judge.
Committee Notes on Rules—2008 Amendment
Subdivision (c)(3). This amendment implements the Crime Victims’ Rights Act, codified at 18
U.S.C. § 3771
, which states that victims have a right to respect for their “dignity and privacy.” The rule provides a protective mechanism when the defense subpoenas a third party to provide personal or confidential information about a victim. Third party subpoenas raise special concerns because a third party may not assert the victim’s interests, and the victim may be unaware of the subpoena. Accordingly, the amendment requires judicial approval before service of a subpoena seeking personal or confidential information about a victim from a third party. The phrase “personal or confidential information,” which may include such things as medical or school records, is left to case development.
The amendment provides a mechanism for notifying the victim, and makes it clear that a victim may move to quash or modify the subpoena under Rule
—or object by other means such as a letter—on the grounds that it is unreasonable or oppressive. The rule recognizes, however, that there may be exceptional circumstances in which this procedure may not be appropriate. Such exceptional circumstances would include, evidence that might be lost or destroyed if the subpoena were delayed or a situation where the defense would be unfairly prejudiced by premature disclosure of a sensitive defense strategy. The Committee leaves to the judgment of the court a determination as to whether the judge will permit the question whether such exceptional circumstances exist to be decided ex parte and authorize service of the third-party subpoena without notice to anyone.
The amendment applies only to subpoenas served after a complaint, indictment, or information has been filed. It has no application to grand jury subpoenas. When the grand jury seeks the production of personal or confidential information, grand jury secrecy affords substantial protection for the victim’s privacy and dignity interests.
Changes Made to Proposed Amendment Released for Public Comment. The proposed amendment omits the language providing for ex parte issuance of a court order authorizing a subpoena to a third party for private or confidential information about a victim. The last sentence of the amendment was revised to provide that unless there are exceptional circumstances the court must give the victim notice before a subpoena seeking the victim’s personal or confidential information can be served upon a third party. It was also revised to add the language “or otherwise object” to make it clear that the victim’s objection might be lodged by means other than a motion, such as a letter to the court.
Amendment by Public Law
1975—Subd. (f)(2). Pub. L. 94–64
amended par. (2) generally.
Effective Date of 1979 Amendment
Amendment of this rule by addition of subd. (h) by order of the United States Supreme Court of Apr. 30, 1979, effective Dec. 1, 1980, see section 1(1) of Pub. L. 96–42
, July 31, 1979, 93 Stat. 326
, set out as a note under section
, Judiciary and Judicial Procedure.
Effective Date of Amendments Proposed April 22, 1974; Effective Date of 1975 Amendments
Amendments of this rule embraced in the order of the United States Supreme Court on Apr. 22, 1974, and the amendments of this rule made by section 3 of Pub. L. 94–64
, effective Dec. 1, 1975, see section 2 of Pub. L. 94–64
, set out as a note under rule 4 of these rules.
Provision of subd. (d) of this rule that witness shall be tendered the fee for 1 day’s attendance and mileage allowed by law as superseded by section
, Judiciary and Judicial Procedure, see such section and Reviser’s Note thereunder.