Vt. R. Crim. P. 17
Reporter's Notes-2018 Amendment
Rule 17(a) is amended to expand the categories of persons who are authorized to issue subpoenas in criminal proceedings, either for attendance of witnesses or for production of documentary evidence and of objects. This subdivision was amended effective February 20, 2017 to clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and the procedures for doing so. The present amendment provides that subpoenas in criminal cases may now be issued by a judicial officer, a court clerk, or a member of the Vermont bar. The amendment does not authorize issuance of subpoenas by nonresident attorneys, even though admitted pro hac vice pursuant to Administrative Order No. 41, §16 and V.R.Cr.P.. In such cases, subpoenas may be issued by the member of the bar of the Vermont Supreme Court with whom the nonresident attorney must at all times be "actively associated." The term "issued" is substituted for the term "provided," in identifying those who are authorized to actually "issue" subpoenas. The amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a defendant's Compulsory Process guarantees, subject to the existing provisions of the rule establishing protections for persons and records that are the subject of subpoenas. The amendment is also intended to establish greater conformity with V.R.C.P. , which has long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a court clerk, or an attorney.
Reporter's Notes-2017 Amendment
Rule 17(a) is amended to clarify that a subpoena is provided by the clerk of court but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and the procedures for doing so. The amended provisions related to provision and issuance of subpoenas are intended to conform to current practice in the criminal division.
Rule 17(c) is amended to add express provision for "nonproceedings" subpoenas duces tecum, that is, for production of specified objects, including but not limited to documents and electronically stored information, outside of the context of deposition or judicial proceedings. The former rule had only addressed document production in connection with witness attendance at deposition, hearing, or trial, and thus did not provide guidance as to those circumstances in which a party was solely interested in seeking production of documents or tangible objects related to a pending case without the necessity of a witness's attendance or personal appearance. The amendment is consistent with the equivalent civil rule, V.R.C.P., which already provides for such "nonproceedings" subpoenas duces tecum.
In default of clear provision for "nonproceedings" subpoenas, attorneys and parties in criminal cases were using existing forms which specified a deposition or court hearing date and time, with the understanding that the documents sought would actually be produced at an agreed location, usually the serving party's office, and not the court as indicated. The amendment serves to conform the rule to the practice which has evolved, clarifying the court's role in issuance of subpoenas duces tecum as well as in responding to objections raised on the part of persons served with such subpoenas. The amendment is also consistent with decisions of the Court suggesting that recourse to the discovery process is the preferred course when a party seeks production of records which may be considered sensitive. See State v. Rehkop, 2006 VT 72, ~ 9, 180 Vt. 228, 908 A.2d 488; State v. Barbera, 2005 VT, ~ 11, 178 Vt. 498, 872 A.2d 309 (mem.); State v. Simoneau, 2003 VT 83, ~ 28, 176 Vt. 15,833 A.2d 1280; State v. Roy, 151 Vt. 17,34,557 A.2d 884, 894-95 (1989), overruled on other grounds by State v. Brillon, 2008 VT , 183 Vt. 475,955 A.2d 1108.
New paragraph (c)(1) specifies that a subpoena commanding production of evidence or to permit inspection, copying, testing, or sampling may be issued independently from, but as well as for, trial, hearing, or deposition. In the case of a "nonproceedings" subpoena, if the requested items are produced, the person commanded to respond need not appear in person at the place of production or inspection. The paragraph carries forward the procedure authorizing the court in event of a motion to quash to direct that the documents or objects sought be produced before the court for in camera review. The new paragraph also specifies for the first time that a subpoena may issue for electronically stored information, with a requirement that the subpoena identify the form or forms in which such information is to be produced.
New paragraph (c)(2) prescribes certain protections for persons who are subject to the issuance of subpoenas. First, a party or attorney responsible for the issuance and service of a subpoena is obligated to take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. Second, express provision is made for filing of objection or motion to quash in response to subpoena within 14 days after service, and all parties have a right to be heard. In the event of objection, the materials in issue shall not be provided to the requesting party except pursuant to court order. In addition, when a party seeks access to a witness's school records, or to any other records of a witness which are by law confidential, the party must provide written notice to the other party that the records have been requested prior to the service of any subpoena requesting such records. This requirement is consistent with existing protection accorded to certain records of alleged victims under, which provides:
|When a defendant seeks access to a victim's school records, or to any other records of a victim which are by law confidential, the defendant shall provide written notice to the prosecutor that the records have been requested prior to the service of any subpoena requesting the records.|
In addition, federal law serves to protect and apply to any release of an individual's substance abuse records and school records. See; In re B.S., 163 Vt. 445, 659 A.2d 1137 (1995). Substance abuse treatment records are not subject to subpoena unless the court finds good cause for disclosure. See ; 42 C.F.R. §2.64(d). Similarly, under the Family Educational Rights and Privacy Act of 1974 (FERPA) a school may not release such records without a valid release except "in compliance with judicial order, or pursuant to any lawfully issued subpoena," if the student and, under certain conditions, parents have been notified. . The purpose of the notification of the parents or the adult student is so they may seek protective action in a motion to quash. . Thus the FERPA also anticipates a motion to quash the subpoena duces tecum as the appropriate procedure to follow. . The amended rule recognizes these provisions of law and their likely applicability in the court's determination of any objection or motion to quash a subpoena duces tecum.
References to "shall" are generally amended to "must" or "will" consistent with general restyling of the rules of procedure by the Court. The change in terminology is stylistic rather than substantive.