I can't find any case law denying the State standing to quash a subpoena duces tecum served by the Defendant on a non-party witness (State's witness). We want to quash Defendant's subpoena; however, defense will argue that the State lacks standing. Has anyone encountered tried to quash such a subpoena before?

If State doesn't have standing, then who does?

I've filed quite a few motions to quash subpoenas of witnesses in a case, and I've never had them denied for lack of standing. I can't see how you can argue the State doesn't have an interest in the case.

It seems very commen sense to me that the State would have standing to file a motion to quash the subpoena. However, I know the defense will argue that we do not have standing.

Also, several of the people in my office don't think we have standing. However, the subpoena doesn't create a seperate legal action. It's a subpart to the entire criminal proceeding, in which the State has an undeniable interest.

Some defense arguments should just get an eye-roll.

The motion to quash basically serves to alert the court to what the state believes is improper discovery.
When I file the motion, I ask the court for permission to put the witnesses on call until the court decides the Motion to Quash.
Upon receipt of the challenge to standing, I ask the attorney for the witness to be on call, in case the court looks like they may buy the standing argument. At that time he can come down and adopt my motion.

Judge granted the motion to quash. I'll post my motion shortly.

MOTION TO QUASH CRIMINAL SUBPOENA DUCES TECUM
AND, IN THE ALTERNITIVE, FOR PROTECTIVE ORDER


TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, The State of Texas, by and through Chris Gatewood, Assistant Smith County Criminal District Attorney, and pursuant to TEXAS CODE OF CRIMINAL PROCEDURE � 39.04 and TEXAS RULES OF CIVIL PROCEDURE � 176.6 and files this Motion to Quash Subpoena Duces Tecum and would respectfully show the Court the following:

I. FACTS

Angelica Lopez, a person from whom discovery is sought in the above-entitled and numbered cause, received a Criminal Subpoena Duces Tecum relating to the above-entitled and numbered cause, commanding her to appear on March 29, 2010 at 8:30am and thereafter instanter in The County Court at Law In and For Smith County, Texas to testify in the above-entitled and numbered case and to produce the following information:
1. All documents pertaining to the Angelica Lopez, Application of Legal Status, any Immigration documents, application for green card, names of Notario Publicos who prepared documents, any and all certificates of matrimony, and all birth certificates, any receipts for payments to anyone for Immigration services.
2. Copies of Form G-28 Notice of Entry of Appearance, Form I-360, copies of receipts for payment of fee to INS/ICE, fee for Fingerprint, any documents related to obtaining fingerprints, evidence of identity, any evidence of battery or extreme cruelty and a copy of any self-petitioner declaration; evidence of good moral character, copy of I-765.
3. All receipts or other documentary evidence of public assistance, including but not limited to Food Stamps, Medic-Aid, Emergency Room visits, Medic Aid benefits.
4. Birth certificates, passport copy of driver�s license and any evidence of receipt of any housing subsidy.
5. All documents which were not furnishes to Angelica Lopez by an attorney or legal representative relative to this subpoena.
A true copy of the Criminal Subpoena Duces Tecum is attached hereto.

II. STATE�S STANDING TO ASSERT MOTION

As a party to this case, the State may file a motion to quash a subpoena duces tecum, which was served on a non-party witness. See Tex. R. Civ. P. 192. Several courts have conducted review where the State has filed a motion to quash a defendant�s subpoena, and the State is not aware of any holding where a court has denied a motion to quash by the State in a criminal action for lack of standing. See O�Dell v. State, 2006 Tex. App. LEXIS 298 (Tex. App. Austin Jan. 12, 2006); May v. State, 139 S.W.3d 93 (Tex. App. Texarkana 2004); and Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992). In civil cases, Courts have also held that a party may quash a subpoena served by an opposing party on a non-party witness. Pelt v. State Board of Insurance, 802 S.W. 2d 822 (1990) and In Re Shell E&P, Inc., and SWEPI, L.P., 179 S.W. 3d 125 (2005). Moreover, because the State is a party to this criminal action, the State has standing to file a motion to quash.

III. OBJECTION FOR IMMATERIAL DISCOVERY

The State moves to quash the above referenced subpoena because the subpoena is an impermissible and immaterial discovery request. A defendant has a limited right of discovery in a criminal action under Texas Code of Criminal Procedure 39.14. 39.14 provides in part that the trial court may "order the State before or during trial . . . to produce and permit the inspection . . . of any . . . objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies." The Court Of Appeals of Texas, Eleventh District, held in Luvano v. State, 183 S.W.3d 918, 2006, that materiality requires more than the mere possibility that the information might help the defense or affect the outcome of the trial.
The Defendant has made no showing and can make no showing that the discovery requested is in any way relevant or material to the pending action. Under a simple discovery request, the Defendant is not entitled to these documents. Moreover, the information and records requested in defendant�s subpoena is overly broad and vague.

IV. SUBPOENA CANNOT BE USED FOR DISCOVERY

A Subpoena is not the appropriate discovery measure for obtaining records immaterial and not favorable to the Defendant. Rule 176.3(b) of the TEXAS RULES OF CIVIL PROCEDURE prevents the use of a subpoena for discovery by stating �[a] subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.� Tex. R. Civ. P. 176.3(b).
Instead of filing a discovery request, the Defendant has used a subpoena duces tecum to require the production of the discovery. In Luvano v. State, the court held that although the subpoena power is available to the defendant so that the defendant may present all evidence favorable to the defendant, that compulsory right is not absolute. The court stated that the subpoena power is limited. Specifically, �[the subpoena power] does not guarantee � the right to secure evidence from any and all witnesses; rather, compulsory process is guaranteed only for obtaining evidence that would be both material and favorable to the defense. The burden of proving materiality and favorableness is on the defendant.� Id at 924.
The Defendant is only entitled to compulsory process if the discovery sought is material and favorable to the Defense. The Defense�s substitution of a subpoena duces tecum for a discovery request should be quashed because the Defendant has not and cannot meet his burden of proving the discovery sought is material and favorable to the defense. As the court held, �A subpoena duces tecum is not to be used as a discovery weapon but as an aid to discovery based upon a showing of materiality and relevance. Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.--Waco 1998, pet. ref'd). If a showing of materiality is not made, it is proper for the trial court to quash the subpoena. See Martin v. Darnell, 960 S.W.2d 838, 840-41 (Tex. App.--Amarillo 1997, no pet.).� Id.

V. DISCOVERY FROM A NON-PARTY WITNESS IS IMPERMISSIBLE

In this case, the defendant seeks to obtain discovery material from a non-party witness, Angelica Lopez. The defendant wishes to use the material strictly for purposes of impeachment. However, the Supreme Court of Texas has held �that discovery of records [from a non-party witness] is not permissible where the records would be used only for the purposes of impeachment.� Russell v. Young, 452 S.W.2d 434, 437 (1970). In Russell, the court noted that �the law governing cross-examination does not necessarily govern discovery of records,� and the court stated that records held by a non-party witness have no impeachment value until testimony is heard at trial. Id. The court noted that even if testimony is given at trial, relevance of defendant�s discovery is determined by the contents of such testimony. Id. Another court further explained that �in order to obtain discovery of personal documents form a nonparty [witness] solely for impeachment purposes, the party seeking the documents must first present evidence raising the possibility that the [witness] is biased.� In re Makris, 217 S.W. 3d 521, 524 (Tex. App. San Antonio 2006)
In order for the defendant to secure information by means of a subpoena duces tecum, the defendant is required to make a good cause and materiality showing. However, in Ex parte Shepperd, 513 S.W.2d 813, 816 (1974), the Texas Supreme Court held that even if a defendant reaches the good cause and materiality burden, the defendant is not entitled to records of a non-party witness if the information is to be used for impeachment purposes only. However, the defendant can only obtain such information if he first presents evidence of bias on the behalf of Ms. Lopez. Therefore, the defendant�s subpoena duces tecum requesting records from Ms. Lopez is impermissible, and the defendant�s subpoena should be quashed.

VI. THE REQUESTED INFORMATION IS PRIVILEGED UNDER FEDERAL LAW

Under the Battered Immigrant Women Protection Act of 2000, all information, applications, and records regarding an applicant are subject to privilege. 8 CFR 214.14(e). Subsection (e) of the Act specifically states,

The use or disclosure of any information relating to the beneficiary of a pending or approved petition for U nonimmigrant status is prohibited unless the disclosure is made:

(i) By the Secretary of Homeland Security, at his discretion, in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8;

(ii) By the Secretary of Homeland Security, at his discretion, to law enforcement officials to be used solely for a legitimate law enforcement purpose;

(iii) In conjunction with judicial review of a determination in a manner that protects the confidentiality of such information;

(iv) After adult petitioners for U nonimmigrant status or U nonimmigrant status holders have provided written consent to waive the restrictions prohibiting the release of information;

(v) To Federal, State, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits pursuant to 8 U.S.C. 1641(c);

(vi) After a petition for U nonimmigrant status has been denied in a final decision;

(vii) To the chairmen and ranking members of the Committee on the Judiciary of the Senate or the Committee on the Judiciary of the House of Representatives, for the exercise of congressional oversight authority, provided the disclosure relates to information about a closed case and is made in a manner that protects the confidentiality of the information and omits personally identifying information (including locational information about individuals);

(viii) With prior written consent from the petitioner or derivative family members, to nonprofit, nongovernmental victims' service providers for the sole purpose of assisting the victim in obtaining victim services from programs with expertise working with immigrant victims; or

(ix) To federal prosecutors to comply with constitutional obligations to provide statements by witnesses and certain other documents to defendants in pending federal criminal proceedings.

(2) Agencies receiving information under this section, whether governmental or non-governmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. 1367.

Accordingly, the information and records in relation to Angelica Lopes is confidential and privileged under federal law. See Hawke v. United States Dept. Homeland Security, 2008 U.S. Dist. LEXIS 87603 (2008). Thus, the defendant�s request of such information should be denied. Therefore, the court should quash defendant�s subpoena duces tecum.
VII. MOTION FOR PROTECTIVE ORDER

A party claiming a privilege may seek protection under the TEXAS RULES OF CIVIL PROCEDURE. Tex. R. Civ. P. 176.6(e). Additionally, a witness may refuse to comply with a subpoena document request where there is �legal cause� to do so pursuant to the TEXAS CODE OF CRIMINAL PROCECURE. Tex. Code Crim. Pro. �� 24.06 & 24.08. In this case, the witness was requested to disclose information that would impose an undue burden and expense. Such disclosure may be a violation of federal law, and the defendant�s request of such information is impermissible as it will only be used for impeachment purposes. Rule 176.7 states that the court must provide a person served with a subpoena protection from undue burdens and expenses. Tex. R. Civ. P. 176.7.
The State moves that the copies of the numerous records requested would result in an unreasonable cost to Angelica Lopez and under the TEXAS CODE OF CRIMINAL PROCEDURE would subject Ms. Lopez to an undue burden. Tex. Code Crim. Pro. �� 24.06 & 24.08. The possible violation of federal law is undoubtedly an undue burden and warrants the issuance of a protective order by this court. The defendant�s request for records that will only be used for impeachment purposes is wholly impermissible. The State, as a party affected by the discovery request, requests that the Court enter a Protective Order directing that the information would impose an undue expense and burden to Angelica Lopez. See Tex. R. Civ. P. 192.


VIII. IN THE ALTERNATIVE: IN CAMERA VIEWING

If the court does not wish to rule on this motion at this time, wishes to further investigate this issue, or the court denies this motion, the State requests that the court view the records requested by the defendant in camera. If the defendant believes that exculpatory evidence may be contained in Ms. Lopez�s records, then the State requests that the court consider the following issues during the in camera viewing:
1) The possibility that federal law may be violated if the sought records are released.
2) Whether the requested records are privileged under the Battered Immigrant Women Protection Act of 2000 under 8 CFR 214.14(e) or any other section of such Act.
3) Whether the information contained in the requested records is exculpatory.


IX. MOTION MADE IN GOOD FAITH

This motion is being made in good faith and not for purposes of delay.

WHEREFORE, PREMISES CONSIDERED, the State respectfully requests that the Subpoena Duces Tecum be quashed in its entirety. In the alternative, the State requests that the Court enter a Protective Order directing that the document request be denied, and that the Court grant such other and further relief to which Angelica Lopez, may be justly entitled; and that the court conduct an in camera view of the requested records if this motion is denied.


Respectfully submitted,

This is a Quash issue- not a Standing Issue.

I have been in negotiations with a Defense Attorney on a DWI case- the last thing discussed was which offer would be accepted.

Out of the blue I hear from DPS that they are having a difficult time complying with a Subpoena from the defense.

My mentor was helping me figure out how to file a motion (which I did) and was to help me at the hearing.

But he's out on FMLA- his wife was expecting and the baby came early. I've asked around my office and no one seems to know if I need witnesses, or if I just get up and argue. And even then, what I argue.

This thread helped me get some ideas- but I wanted to see if anyone else had any ideas/advice about what to do.

Here's what I'll be arguing:

1. Subpoena is being used as a way to get discovery.

2.This is an improper form of discovery.

Any other ideas? I'd appreciate it!

As for improper discovery, you've probably come across Shpikula, 68 S.W.3d 212, which is probably very close to directly on point for you.

What about the argument that reports prepared by state experts are nondiscoverable work product specifically excluded by 39.14? Then the court doesn't even have the authority to order it. I'm just thinking out loud here -- but I do see Feehery, 480 S.W.2d 649, and Alba, 492 S.W.2d 555, that might support this argument. I'm generally suspicious of any case law that predates Star Wars, though.

quote:

I'm just thinking out loud here -- but I do see Feehery, 480 S.W.2d 649, and Alba, 492 S.W.2d 555, that might support this argument. I'm generally suspicious of any case law that predates Star Wars, though.

Sometimes the oldies are the goodies. I found a Ct.Crim.App. case from the 30s recently on an unrelated and obscure issue, and it is still good law.

Some age like fine wine....... Just like some prosecutors.

BTW - Thanks for the cite on Shpikula. We have a problem with the defense having the clerk issue a subpoena duces tecum for production of documents at the defense counsel'd office. One more weapon in my arsenal against this practice. I have been telling the witness to ignore such subpoenas, because there is no legal authority for issuance of the same.

This message has been edited. Last edited by: MDK27,