MCL 600.1455(1) authorizes courts of record to issue subpoenas requiring the testimony of witnesses, and MCR 2.5061 regulates that process. The trial court “may by order or subpoena command a party or witness to appear for the purpose of testifying in open court on a date and time certain and from time to time and day to day thereafter until excused by the court, and/or to produce documents, or other portable tangible things.” MCR 2.506(A)(1). Subpoenas may be signed by an attorney of record in the action or by the clerk of the court. MCR 2.506(B)(1). The court may enforce its subpoenas using its contempt power, MCR 2.506(E), and is provided other enforcement options by MCR 2.506(F).2
“Notwithstanding any other provision of [MCR 2.305], a subpoena issued under [MCR 2.305] may require a party or witness to appear by telephone or by videoconferencing technology. Telephonic proceedings are subject to the provisions of MCR 2.402, and videoconference proceedings are subject to the provisions of MCR 2.407.” MCR 2.305(F).
An accused in a criminal prosecution has the right “to have compulsory process for obtaining witnesses in his or her favor.” Const 1963, art 1, § 20. See also MCL 767.32 and MCL 775.15. “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense,” which “is a fundamental element of due process of law.” Washington v Texas, 388 US 14, 19 (1967); see also People v McFall, 224 Mich App 403, 407 (1997). A criminal defendant’s right to compulsory process, though fundamental, is not absolute. Id. at 408. It requires a showing that the witness’s testimony would be both material and favorable to the defense. Id. Matters of compulsory process, as well as trial continuances to obtain a witness, are decided at the discretion of the trial court. Id. at 411.
There are a number of specialized statutes providing for subpoenas in particular situations. See, e.g., the Uniform Interstate Depositions and Discovery Act, MCL 600.2201 et seq., permitting a party to “submit a foreign subpoena to the clerk of the circuit court in the county in which discovery is sought to be conducted” in order “[t]o request issuance of a subpoena” in Michigan. MCL 600.2203(1).3
B.Subpoena Duces Tecum (Subpoena for Production of Evidence)
The court may require a party or witness to produce documents or other portable tangible things. MCR 2.506(A)(1). A request for documents or tangible things must comply with MCR 2.302(B) and any scheduling order. MCR 2.506(A)(1). MCR 2.506(A)(1) does not apply to discovery subpoenas issued under MCR 2.305 or requests for documents to a party where discovery is available pursuant to MCR 2.310. MCR 2.506(A)(1). A copy of the subpoena must be provided to the opposing party or their counsel. Id. See Section 12.7(C) for information on objections to the subpoena.
Subpoenas for hospital medical records are controlled by MCR 2.506(I).
MCR 2.506(H)(1) states that a person served with a subpoena or order to attend under MCR 2.506 may appear and challenge the subpoena. For good cause, the witness may be excused, with or without a hearing. MCR 2.506(H)(3). Otherwise, a subpoenaed person must appear unless excused by the court or the party who had the subpoena issued. MCR 2.506(H)(4). The obligation to produce documents, if timely written objections are served, is stayed pending resolution of a motion to quash. Id.
“Any party may move to quash or modify a subpoena by motion under MCR 2.302(C) filed before the time specified in the subpoena, and serve same upon the nonparty, in which case the non-party’s obligation to respond is stayed until the motion is resolved.” MCR 2.506(H)(5).
1 “The provisions of the rules of civil procedure apply to [criminal] cases[,] . . . except (1) as otherwise provided by rule or statute, (2) when it clearly appears that they apply to civil actions only, (3) when a statute or court rule provides a like or different procedure, or (4) with regard to limited appearances and notices of limited appearance.” MCR 6.001(D).
2 See the Michigan Judicial Institute’s Contempt of Court Benchbook, Chapter 5, for more information.
3 See also MCR 2.305(E), providing that “[a] person may request issuance of a subpoena in this state for an action pending in another state or territory under the Uniform Interstate Depositions and Discovery Act, MCL 600.2201 et seq., to require a person to attend a deposition, to produce and permit inspection and copying of materials, or to permit inspection of premises under the control of the person.” “Notwithstanding any other provision of [MCR 2.305], until further order of the Court, a subpoena issued under [MCR 2.305] may require a party or witness to appear by telephone, by two-way interactive video technology, or by other remote participation tools.” MCR 2.305(F).