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Lawyers could issue criminal subpoenas under proposal


For some lawyers, especially those in far-flung rural areas, driving to the nearest courthouse to have the clerk issue a subpoena in a criminal case can be a time-consuming hassle. But the process might be about to get a whole lot easier.

The South Carolina Supreme Court is considering amendments to the state’s criminal procedure rules that would allow lawyers, as officers of the court, to issue subpoenas in criminal cases in circuit court. Lawyers already have subpoena power in civil cases.

The court has closed its public comment period on the proposed amendments to Rule 13 after receiving feedback from 21 criminal defense lawyers, public defenders, court clerks, solicitors and other stakeholders. A statewide prosecutors’ group opposed the amendments, while most other commenters overwhelmingly supported changing the rule. The change would bring the Palmetto State in line with several other jurisdictions, including Georgia and North Carolina.

“As a member of the Georgia and North Carolina bars, I can report that I have heard of no problems with attorney-issued subpoenas,” Pendleton-based attorney and mediator Howard Anderson told the Supreme Court.

A criminal defense lawyer in Manning, Robert Butcher, wrote in a public comment that he and his staff sometimes have to drive “several hours each way to have a subpoena signed by the clerk of court.”

“I have also had problems with the clerks informing the assistant solicitors about the names of persons I was subpoenaing for trial,” he added. “This occurred in Kershaw [County] about six or seven years ago.”

Jennifer Davis, a deputy public defender in Richland County, called the change “very necessary” as it “would allow attorneys the tools they need in preparing for cases and trials.”

Beverly Whitfield, clerk of court in Oconee County, wrote that the process of issuing a subpoena is largely ministerial, saying that she simply checks “to make sure all the boxes are correct” and then signs the document. She added that allowing lawyers to issue criminal subpoenas “is of no concern to me and would take one more burden off the clerk.”

Dayne Phillips, president of the South Carolina Association of Criminal Defense Lawyers, wrote that SCACDL supported the rule change, which he said would “clarify any ambiguity in South Carolina regarding a criminal defendant’s right to compulsory process and will allow criminal defense lawyers to use the same methods as their civil colleagues in pursuing justice”

Phillips added that the state Attorney General’s Office “has previously taken the position in some cases that a criminal defendant does not have the right to use a subpoena duces tecum to obtain evidence. This is in violation of the criminal defendant’s due process right to have an opportunity to present a meaningful and complete defense.”

Other commenters, including Michael Atwater, a general practitioner in Columbia, and Marsh Julian, city prosecutor for Florence, asked the court to consider granting lawyers the authority to issue subpoenas for all criminal matters, including those in the magistrate and municipal courts, not just the circuit court

Such a change would let prosecutors obtain video surveillance evidence in shoplifting cases, traffic crashes and other matters that are commonly heard in the state’s lower courts, according to Julian. He wrote that it was “important to equip these courts and their prosecuting officers [with] the tools necessary to execute their role in the justice system.”  

Meanwhile, David Ross, executive director of the South Carolina Commission on Prosecution Coordination, opposed the proposed amendments to Rule 13 in a lengthy response he sent to the high court on the group’s behalf.

“In light of recent ethics opinions,” Ross wrote, prosecutors were “concerned about the ethics implications of the improper use of subpoenas.” He cited a 2016 disciplinary order in which a lawyer was reprimanded for failing to tell opposing counsel about subpoenas she’d issued for records in a divorce case.

Ross also asserted that the criminal subpoena rule and its civil companion are different animals, primarily because the former is used to compel witnesses to attend court hearings, sometimes with evidence in hand, while the latter focuses solely on “documentary and other tangible items separate and apart from any trial, hearing or other court proceeding.”

“Therefore, in the absence of express statutory authority, it is improper for prosecutors and defense attorneys to use subpoenas duces tecum for investigative purposes, i.e., before criminal charges have been initiated and the General Sessions Court has jurisdiction over the charges, and without a court proceeding being scheduled,” he wrote.

Ross urged the Supreme Court to reverse course and tweak Rule 13 to require a court order for the issuance of a subpoena in a criminal matter. The change, he said, was needed to prevent lawyers from using subpoenas to “obtain personal and confidential, and often irrelevant, information about  a crime victim without notice to the State or the victim.”

The South Carolina Victim Assistance Network also had privacy concerns about the proposed rule change and joined the prosecutors’ commission in recommending that court orders be required for subpoenas involving victims and their personal or confidential information.

“If subpoenas are issued with no regard to the relevance or specificity of materials sought and with zero oversight,” the group wrote, “it is inevitable that victims’ rights will be trampled.”

If the Supreme Court decides to move forward with the rule change after considering the public comments, it will submit the amendments to the General Assembly. The new subpoena power rule would take effect 90 days after being submitted, unless lawmakers vote against the proposal.

Follow Phillip Bantz on Twitter @SCLWBantz

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