When you are charged with a crime or traffic violation you have a right to Due Process of Law. This “Due Process” includes the right to a trial on charges brought against you. And to defend yourself at trial, you have the Right to Call Witnesses against you, and witnesses who may help your Defense.
What does that mean? What if they dont have a phone? What if you do not know their phone number?
In the last 14 years of working in court, I have noticed the judges always tell people they have the right to call witnesses, but they never tell people how to do it. And almost no one will tell you how to do it for free. Except for me. I am going to give you an intro lesson on using the Subpoena Power in traffic court.
|The Right to Call Witnesses is in fact a Constitutional Right that allows you to Use the Court’s “Subpoena Power” to Force People or Things to come to court to be cross examined by you in court.|| |
What is a Subpoena?
A Subpoena is actually an order from the Court telling a person to either show up in court, or to bring something to court. When a Subpoena is directed to a person to appear in court, it is called a personal subpoena. When it is used to get a thing into court (like a photograph or sign), it is called a “Subpoena Duces Tecum” – which means, basically, Subpoena “bring it with you”.
Things are witnesses. Dont think about it. Just accept it. Things are witnesses.
Subpoenas can be used in nearly all court cases, including Traffic Court cases. Subpoenas are the mechanism used by Attorneys and parties in a case to get evidence together.
A Traffic Court Defendant in CA can use a Subpoena to force any witness to appear in court. This includes cops, bystanders who saw what happened, passengers, the person who maintains the machine, or the tow truck driver who impounded the case.
A Subpoena can also be used to get things into trial such as photos, maintenance records, radar guns, video recordings, paperwork, Officer’s Notes, a sign, engineering study, empty beer can, cell phone records, radio active waste, the gun the cops took from you, etc.
If you want to force a thing to come to court, you have to direct the subpoena to the “Custodian of Records” – or the person who is known to have possession or control over the item. Most large businesses and government agencies (including the CHP) have a person designated as teh “Custodian of Records” who is responsible for responding to subpoenas.
How Does a Defendant Representing Themselves Get a Subpoena Issued?
Well, one of the great powers of being a licensed Attorney is that an Attorney can sign and issue an enforceable Subpoena alone. Sign and Serve. That what we call it.
Of course there are limitations the Attorneys must follow to prevent abuse (which is completely possible), but that is why attorneys have a license the state can take away.
What if you have no attorney to help? In cases where a defendant represents themselves, (called “pro per”), the Defendant has the right to use a Subpoena, but they must get the court clerk to sign the Subpoena Form.
Usually this means a Pro Per Defendant should download the Judicial Council Subpoena Form CR-152 (free above), then take it in person to the court clerk. Once there, tell the court clerk that you need to get the subpoena issued, give them the form (2 copies), and ask for signature and stamp.
Dont let them give you any flak – it is not their job to determine how, when, or why you are using your Constitutional Right to Call Witnesses against you. Get it signed so that you can get it served. Keep Copies of everything.
In some courts, such as Sacramento, they have published the Subpoena Form in a local format with the clerk’s signature already on it (Sacramento County Traffic Court Subpoena Form .PDF). So in Sacramento, and other similar courts, you do not have to go into the court clerks office in person to get a signature. Check the court’s web site for “Local Traffic Court Forms” to see if you can avoid an in person trip to the clerks office.
Once a Subpoena is Issued by the Court Clerk, It Must Be Personally Served on the Witness or Custodian.
To be enforceable, a Subpoena must be personally handed to the person it is directed to. Defendants cannot serve the Subpoena themselves. There must be an Independent Person to Serve the Subpoena, and that person must be able to testify in court in case the Subpoena is not satisfied.
You can use a friend to serve a Subpoena. But is best to use the Sheriff’s Department Process Service service (unless you are serving the Sheriffs tehmselves). The second best option for serving a Subpoena is to hire a process server to get it done right.
Once a Subpoena is served, the server must fill out the attached “Proof of Service” so that if necessary, the service of process can be verified in court. Make sure the person who serves the Subpoena is ready to appear in court with you if necessary.
There are time limits to serving a subpoena so that the witness or custodian has time to get ready. I will not go into details here except to say, subpoena everything early. At least 10 days is required for most things or people – unless you can convince a judge that a shorter period of time is reasonable. Earlier is better.
What If Your Traffic Court Subpoena is Ignored, or Not Fully Satisfied?
This is a big subject. I can not cover it all here. But I can tell you this:
If something you legitimately subpoenaed is needed for the trial and does not show up, you should demand a continuance of the hearing or trial, and ask the judge to help you enforce the subpoena. Object to everything on Due Process grounds. Tell the judge you are being denied your right to call witnesses.
The Court Clerk and Judge Do Not Have to Approve Your Subpoena.
Dont worry about the court clerk not allowing you to call the witness you want to subpoena, or the judge not allowing you to subpoena the radar gun. The Court Clerk and the Judge are not allowed to pre screen your demand for witnesses or things for anything other than deadline or correct format.
If there is a problem with the items you want – as long as you serve the Subpoena properly – it is the burden of the person who gets the subpoena to challenge it or object to it in court. And they have the right to object to a subpoena.
If you subpoena something or someone that does not show up on court, you will have to ask the judge to enforce your subpoena. If the thing or person you subpoenaed really has no relevance to the case (or you cannot explain it) – the judge may refuse to enforce your subpoena. This may happen, for example, if you subpoena Governor Jerry Brown to talk about highway funding issues in traffic court. The governor is going to ignore you, and the judge is going to refuse to enforce it, even if you served it correctly. Get it?
If you subpoena something that is clearly not usable, there is a slim possibility the person who got the subpoena may ask the judge to have you pay their expenses in challenging it. So be careful not to be ridiculous with your demand.
You need to be able to explain why the thing or person you want in court is RELEVANT to your defense – which means “has a tendency to prove or disprove some fact at issue”. Got that?
OJ – Ooops! No offense. Even OJ has the right to subpoena witnesses in court. I meant “OK” –
OK that is all for the free lesson – Dont tell me if there are type-os I dont care. Dont rely on this article as your only source of info on the topic – this is a big subject and I left out many important details.
Question? Leave a comment. We try to answer the well written ones.