211.1Securing Attendance of Witnesses
- The attendance of most of the state’s witnesses at trial can be secured through a standard subpoena ad testificandum, which compels the person’s attendance and is punishable by contempt for failure to appear and testify.
- Uncooperative or reluctant witnesses may be taken into custody through a material witness order to ensure their appearance.
- Witnesses may also voluntarily enter protective custody; for example, if a witness fears that he or she may be subject to harassment or intimidation before trial.
In the most cases, the state will secure the attendance of its trial witnesses who are not in custody or residing out of state (e.g., the victim of the assault, a passerby who witnessed the events, law enforcement officers, business records custodian, or a chemical analyst) through the use of a subpoena to appear and testify (“subpoena ad testificandum”). See AOC-G-100. As with a subpoena for the production of documents, discussed in the previous section (Subpoena to Produce Documents: Contents and Basic Procedure), G.S. 15A-801 and G.S. 15A-802 provide that a subpoena for a person’s attendance and testimony must be issued and served in accordance with Rule 45 of the Rules of Civil Procedure. See also G.S. 8-59 (Issue and service of subpoena). To compel the attendance of a witness at a court proceeding, any party to a court action or the party’s attorney (which includes the prosecutor, as an attorney for the state) may issue a subpoena. A subpoena for a witness may also be issued by a district or superior court judge or magistrate, see Rule 45(b), or a clerk of the county where the proceeding will be held, see Rule 45(a); G.S. 7A-103(l).
A subpoena may not be issued before there is a pending criminal proceeding, unless a specific exception applies such as an administrative subpoena issued by State Bureau of Investigation agents under G.S. 15A-298, or a subpoena for financial records in the investigation of exploitation of a disabled or elder adult (see AOC-SP-630). A prosecutor who wants to obtain information or documents before a criminal charge has been brought should consider using a search warrant (assuming, of course, that probable cause exists) or the authority to obtain a court order set out in In re Superior Court Order, 315 N.C. 378 (1986) (note that that Chapter 53B of the General Statutes has superseded the subject matter of the ruling in this case, but the court’s general ruling about a judge’s inherent authority to issue orders still remains valid) and In re Albemarle Mental Health Center, 42 N.C. App. 292 (1979) (superior court judge has authority, before criminal charges are brought, to override physician-patient and psychologist-patient privilege on application of district attorney to obtain privileged information about alleged homicide).
2. Content and Service
The required contents and manner of service for a subpoena to appear and testify are similar to those for a subpoena duces tecum under N.C. Rule of Civil Procedure 45(a) and (b). No affidavit showing materiality or necessity is required. See Vaughan v. Broadfoot, 267 N.C. 691 (1966). The standard AOC form subpoena, AOC-G-100, includes space for the issuing party to fill in the specific case information, as well as the form language required in all cases. Rule 45(a)(1) requires that every subpoena state the following:
- the title of the action;
- the name of the court in which the action is pending;
- the name of the party who is responsible for summoning the witness;
- a command to the person to whom it is directed to attend and testify (including the date, time and place that the appearance is required);
- the protections for recipients of subpoenas as stated in Rule 45(c); and
- the duties of recipients in responding to subpoenas as stated in Rule 45(d).
Under Rule 45(b)(1), a subpoena to appear and testify may be served by:
- the sheriff;
- a sheriff’s deputy (most common);
- a coroner; or
- any person who is not a party and is not less than 18 years of age.
The prosecutor is not a party, and therefore he or she is permitted to serve a subpoena. Additionally, G.S. 15A-801 exempts criminal cases from the requirement that a copy of the subpoena be served on the opposing party, so the subpoenaing party in a criminal case only has to serve the person or entity being subpoenaed in accordance with the above requirements. Service on the person named in the subpoena can be made by:
- personally delivering a copy of the subpoena to that person;
- registered or certified mail, return receipt requested; or
- telephone communication with the person to be subpoenaed if service is made by a sheriff, his or her designee who is not less than 18 years old and not a party, or a coroner.
See G.S. 8-59, which states that a subpoena ad testificandum (unlike a subpoena duces tecum) can be served by telephone communication by any employee of a law enforcement agency. However, when a person is served by telephone under this statute, "neither an order to show cause nor an order for arrest shall be issued until such person has been served personally with the written subpoena." Id. But see State v. Gonzalez, 278 N.C. App. 302, rev. denied, 379 N.C. 151 (2021) (without addressing G.S. 8-59, court held that "the trial court would not be divested of jurisdiction to hold a show cause hearing to determine whether criminal contempt occurred especially for a subpoena validly served via telephone" and "because Defendant was served with a valid subpoena via telephone, the trial court had proper jurisdiction to hold her in contempt, so long as the trial court followed the lawful process required to order contempt").
Phone service of subpoenas
Due to the high volume of subpoenas that must be served on a regular basis, especially for misdemeanor dockets in larger counties, the sheriff’s office relies on telephone service for many of the subpoenas issued by the prosecutor’s office. In most cases that is perfectly acceptable, and constitutes valid service under the statute. But if a prosecutor has a case where he or she believes there is a high likelihood that a particular witness may not comply with the subpoena, the prosecutor should ensure that the subpoena is served in person instead, due to the limitations on enforcing subpoenas served only by phone. See G.S. 8-59; see also the section on Material Witness Orders, below.
3. Obligations, Penalties for Non-compliance
Every witness who has been summoned by subpoena in a criminal prosecution must appear and continue to attend from day to day and session to session until discharged by the court or by the party who summoned him or her to appear. G.S. 8-63. The statute also states that the prosecutor may discharge a witness from a subpoena, but of course this authority presumably only applies to witnesses summoned by the prosecutor.
A person who fails to obey a properly served subpoena without adequate excuse may be held in contempt of court for violating a court order (that is, the subpoena directing attendance, whether signed by an attorney or a judicial official). N.C. R. Civ. P. 45(e)(1); see also G.S. 5A-11(a)(3) (criminal contempt for willful disobedience of a court’s lawful process or order); G.S. 5A-21 (civil contempt for continuing failure to comply with order of a court). A court may issue an order for arrest along with an order to show cause re: contempt if the court has probable cause to believe the person named in the show cause order will not appear in response to the show cause order. G.S. 5A-16(b).
4. Burden and Expenses
N.C. Rule of Civil Procedure 45(c)(1) provides that the party or attorney responsible for issuing a subpoena “shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena.” (For example, providing the person with insufficient notice in advance of the appearance date.) Failure to do so may result in sanctions. The sanctions may include compensating the person unduly burdened for his or her lost earnings and for reasonable attorney’s fees. See also the related entry on Objections and Motions to Quash/Modify a Subpoena.
Witnesses under subpoena, other than salaried law enforcement officers, are entitled to be compensated in the amount of $5.00 per day. G.S. 7A-314(a) (amount of compensation). A witness also may be entitled to receive reimbursement for travel expenses. See G.S. 7A-314(b). Witnesses are not entitled to receive their fees in advance. G.S. 6-51. Rather, the witness must apply to the clerk after attendance for payment. See G.S. 6-53 (witness to prove attendance by oath or affirmation); G.S. 7A-316 (to same effect); AOC-CR-235 (“Witness Attendance Certificate”). A judge decides, in his or her discretion, what compensation and allowances to authorize for a witness who appears in the capacity of an expert witness. See G.S. 7A-314(d).
5. Privilege Protections
Certain persons are protected against being compelled to testify or disclose information that falls under the scope of covered communications. See, e.g., G.S. 8-53; 8-53.1 (physician/patient); G.S. 8-53.2 (clergy/communicant); G.S. 8-53.3 (psychologist/patient); G.S. 8-53.4 (school counselor); G.S. 8-53.5 (therapist/patient); G.S. 8-53.6 (marriage counselor); G.S. 8-53.7 (social worker); G.S. 8-53.8 (counselor); G.S. 8-53.9 (optometrist/patient); G.S. 8-53.10 (peer support counselor); G.S. 8-53.11 (news media, journalists); G.S. 8-53.12 (rape crisis center workers); G.S. 8-53.13 (nurses).
However, under several of these statutes, the court can order disclosure at or prior to trial if the court finds it is necessary in the interests of justice, and the disclosure is not otherwise prohibited by statute. If the subpoenaed party objects based on privilege grounds, the prosecutor should review the applicable statutes and consider using a court order to compel production, if allowed. For more information, see Section D., “Court Order to Override Objection or Motion to Quash” in the related entry on Subpoena to Produce Documents: Compliance and Objections.
Material Witness Order
To assure the attendance of an uncooperative or reluctant witness, the state may seek a material witness order if there are “reasonable grounds to believe that the person whom the state or a defendant desires to call as a witness in a pending criminal proceeding possesses information material to the determination of the proceeding and may not be amenable or responsive to a subpoena at a time when his attendance will be sought.” See G.S. 15A-803(a); State v. Tindall, 294 N.C. 689 (1978); State v. Jacobs, 128 N.C. App. 559 (1998); State v. Coen, 78 N.C. App. 778 (1986). The procedures in G.S. 15A-803 should only be used to secure the attendance of uncooperative in-state witnesses. For witnesses located outside North Carolina, the procedures outlined in G.S. 15A-813 should be followed instead. (For more information see the next entry, Securing Attendance of Witnesses: Out-of-State.)
G.S. 15A-803(g) authorizes the court to assure the attendance of a material witness by issuing a subpoena or an order for arrest. (Since the whole purpose of a material witness order is to assure the attendance of a material witness who is unlikely to be responsive to a subpoena, it is not clear when a subpoena alone would be an effective device for the court to use.) If arrested, the witness may be incarcerated or released on bond pending the proceeding where his or her testimony is required. See G.S. 15A-803(e).
To obtain a material witness order, the state must file a motion supported by an affidavit showing cause (“reasonable grounds”) for its issuance. The witness must be given:
an opportunity to be heard and present evidence; and
the right to representation by counsel at a hearing on the motion.
See G.S. 15A-803(d). A material witness order may be issued by a district court judge at the time that a defendant is bound over to superior court at a probable cause hearing, or by a superior court judge at any time after the criminal proceeding is initiated. G.S. 15A-803(b). The judge must make findings of fact that support the issuance of the material witness order. G.S. 15A-803(d).
A witness may be incarcerated pursuant to a material witness order for up to twenty days. This order may be renewed one or more times by a superior court judge, in his or her discretion, for periods not longer than five days each. The material witness order remains in effect for the period stated in the order unless modified or vacated earlier by a superior court judge. G.S. 15A-803(c). A superior court judge may modify or vacate a material witness order if the witness, the state, or any defendant shows new or changed facts or circumstances. G.S. 15A-803(f).
If the witness is placed in custody, the prosecutor should contact the detention staff and make sure they are aware of the person’s status as a material witness, so that he or she will not be transported or housed along with the defendant against whom the witness is expected to testify.
Voluntary Protective Custody
If a witness wishes, he or she can ask a superior court judge to place him or her in protective custody. If the judge determines that the witness is material, the judge may order that the witness be:
- Placed in custody in “other than a penal institution;”
- Released to the custody of a law enforcement officer or other person; or
- Made subject to any other provisions appropriate to the circumstances.
"Other than a penal institution…?”
This phrase is not defined in the statute, nor are there any North Carolina cases interpreting it, but read in conjunction with the provisions allowing for releasing the person to the custody of a law enforcement officer or other person, or making the person subject to any other provisions appropriate to the circumstances, the statute appears to authorize housing a witness in a less restrictive environment (such as a hotel, safe house, or group home), if appropriate. See generally U.S. v. Walton, 602 F.2d 1176 (1979) (discussing material witness who was placed in a “witness security program, so that her whereabouts were unknown” to the defendant).
See G.S. 15A-804(a). A superior court judge can modify or vacate the order on request by the witness or on the judge’s own motion. G.S. 15A-804(d). A voluntary protective custody order may be issued even if there is also a material witness order in effect for the witness and vice versa. G.S. 15A-804(c). The custodian of a witness under a voluntary protective custody order may not release the witness without the witness’s consent “unless directed to do so by a superior court judge, or unless the order so provides.” G.S. 15A-804(b). The Official Commentary to this statute states in part that “the basis for this section sprang from the fear that members of organized crime might attempt to obtain the release of a witness who would prefer to remain in custody.”