Defense use of subpoenas in criminal cases – Criminal charges are simply formal accusations by the government, stating that the defendant has is accused of committing a crime. The defendant is always presumed innocent and will remain that way until the government proves beyond a reasonable doubt that they committed every element of the crime. It is always the burden on the government to prove guilt, but in a criminal trial the defense strategy may include calling witnesses on their own, to provide testimony that will help the defendant. This is in addition to cross examining the government’s witnesses.
The defendant has the legal authority to do this, through the process of serving potential witnesses with subpoenas. In this blog, we will discuss the defense use of subpoenas and defense witnesses. Like all our blogs, this is intended for general informational purposes only and not as a substitute for the advice and counsel of a criminal defense lawyer.
*Please note that is entire discussion is in the context of North Carolina criminal trials.
Securing compliance from a potential defense witness
The right to compel witnesses to testify
Whether someone wants to be involved in a criminal case or not is not usually their choice. From a defense standpoint, the Six Amendment of the United States Constitution, among other things, give the defense the right to have a compulsory process for obtaining witnesses in his or her favor.
This means that the defense can force someone to take the stand to testify, just like the government can. For this to occur the potential witness only must have relevant and material information that can help the defenses’ case.
The process to compel witnesses to testify
In order to protect the defendant’s right to have witnesses testify, the people wanted in trial for testimony must be served a subpoena. That person must be properly served and must comply unless they properly object in writing within 10 days of service, or before the day that they are ordered to appear at trial.
A defense attorney can subpoena as many people as they see fit for the defense of their case.
Securing the presence of out of state witnesses
In order to secure the presence of a witness who does not live in North Carolina, there is a process that goes above and beyond the typical subpoena. This process includes obtaining a certificate and order from the state of North Carolina court, in which the case is pending. Further, the defense would also have to seek an order from the state in which the witness lives, requiring the person to attend court proceedings in North Carolina. This law is specified under North Carolina General Statute 15A-813.
Criminal cases can be very challenging, many defense strategies can be utilized and there is a lot to consider. If you have been charged with a crime in North Carolina or South Carolina and are seeking representation, contact us.