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Effective Use of Subpoenas in General Sessions Courts
My previous column discussed issues unique to corporate investigations. This month, let’s travel to general sessions courts, where many more people are likely to interact with the criminal justice system and for whom this will be the only court they ever see. For all those accused of committing an offense, a general sessions court preliminary hearing truly is a critical stage in a criminal proceeding. McKeldin v. State, 515 S.W.2d 82 (Tenn. 1974). Yet because there is no formal discovery in general sessions courts, both prosecutors and defendants must make important decisions on limited information. One of the most important ways to obtain relevant information is the subpoena duces tecum. It always amazes me how many people either do not understand or do not use the right to compel the production of documents and objects in general sessions courts.
Subpoena Power Is the Same in General Sessions and Criminal Court
With limited exception, the Rules of Criminal Procedure apply only in criminal cases conducted in courts of record. Tenn. R. Crim. P. 1(a). Rule 1(b) enumerates the rules that also apply in general sessions courts and specifically provides for the applicability of the rules for “subpoena[s] pursuant to Rule 17.” Tenn. R. Crim. P. 1(b).
Contrary to practice in some counties, the rule does not require you to provide notice to the other side about whom or what is to be subpoenaed. Rather, the rule states that the clerk of the court “shall” provide blank subpoenas with the party filling in the blanks before service. Tenn. R. Crim. P. 17(a).
Practitioners are perhaps more familiar with requesting subpoenas to be issued for the attendance of witnesses, but subpoenas may also compel the production of documents:
(d) Documents and Objects. A subpoena may order a person to produce the books, papers, documents, or other objects the subpoena designates.
Tenn. R. Crim. P. 17(d). Rule 17(d)(1), underused in Criminal Court and rarely if ever used in sessions court, grants the court discretion to require production prior to the date of the hearing to allow inspection of the documents. In the proper case, if there were complicated issues and copious documents, it would be appropriate to file a motion seeking authorization for a subpoena under this rule so that the parties could adequately prepare beforehand instead of arriving for a hearing and, unable to review a stack of documents or videos, asking for a continuance.
Even if you obtain the information you want pursuant to a Rule 17 subpoena, the court can restrict the admission of defense evidence if it concludes in its discretion that the evidence is not relevant to rebut probable cause. The prosecution often objects that evidence is not being offered to rebut probable cause. That is not always a valid objection. For example, even at a preliminary hearing, rules excluding evidence acquired by unlawful means apply. Tenn. R. Crim. P. 5.1(a)(1). As such, evidence relevant to a motion to suppress (like the dog training and performance records in a case involving a dog’s alleged alert on narcotics) would clearly be appropriate to subpoena to the preliminary hearing.
Finally, even though a defendant may subpoena documents, see Tenn. R. Crim. P. 17, and even though a defendant may subpoena the “state’s” witnesses, see State v. Womack, 591 S.W.2d 437 (Tenn. Crim. App. 1979), one clear limitation on subpoena power is that witness statements may not be subpoenaed from the state or the defendant. Tenn. R. Crim. P. 17(h).
Subpoenas for Protected Health Information
In criminal cases, the medical records of a witness may be directly relevant to rebut probable cause. In aggravated assault cases, for example, serious bodily injury may be an element of the offense. Either side may therefore wish to subpoena the alleged victim’s medical records. No longer can a party simply issue a Rule 17 subpoena for this type of record, though. Pursuant to HIPAA, a party must either obtain a court order authorizing the subpoena, 45 C.F.R. § 164.512(e)(1)(i), or must provide notice and certification that certain requirements restricting the use of this information will be met. A traditional subpoena duces tecum should be met by a motion to quash by the health care provider’s counsel.
As a practical matter, counsel in general sessions court should attempt to reach an agreed order to obtain judicial authorization for the subpoena or, barring agreement, should file a motion documenting the relevance of the medical records to be subpoenaed. Upon filing such a motion, depending upon the jurisdiction, counsel must take proper steps to make sure the motion is heard far enough ahead of the preliminary hearing to allow compliance with the subpoena.
Remedies for the Improper Denial of Subpoenas
A party who has been denied the opportunity to obtain or use the court’s subpoena power in General Sessions Court may have remedies. If the case has already been bound over to the Grand Jury, the Circuit or Criminal Court has jurisdiction. Although there are several procedural mechanisms for appealing procedural flaws to the Circuit or Criminal Court, David Raybin wisely recommends filing a motion to vacate and remand in order to avoid the the possibility that the case will be dismissed only to be immediately recharged. Raybin, Tennessee Practice and Procedure, vol. 9, Section 7:28.
A significant proportion of all criminal cases are resolved in general sessions courts, and the preliminary hearing is a critical stage in the proceeding even for those cases that will eventually be bound over to the Grand Jury. Subpoenas can assist the parties and are an important tool too often underused when preparing and presenting one’s case in sessions courts.
- Tenn. R. Crim. P. 5.1, Advisory Commission Comment (“It is unnecessary for the magistrate to hear more of the state’s proof than is necessary to establish probable cause, and the magistrate may terminate the hearing at any time that probable cause has been established and the accused has been afforded the opportunity to cross-examine the witnesses called by the state and to present defense proof reasonably tending to rebut probable cause.”).
- Some jurisdictions have adopted local rules setting out the form for medical records subpoenas. See, e.g., Rule 29, Rules of the Circuit Court for the Third Judicial District. Counsel can adopt those requirements in drafting a subpoena to use in sessions court if prior judicial authorization is not going to be sought.
- Gregory M. Duckett and Janelle Burns, “Responding to Subpoenas for Medical Records in Compliance with HIPAA,” Tennessee Bar Journal, vol. 39, no. 5, May 2003, pp. 18-21.
WADE DAVIES is the managing partner at Ritchie, Dillard & Davies PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.