Municipal Clerk Manual – Courts without JIS - Chapter 2 - Pre-Trial/Trial Procedures: Witness/Subpoena

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Municipal Clerk Manual – Courts without JIS

		Section/Rule:	2.5
Subject:	Chapter 2 - Pre-Trial/Trial Procedures	Publication / Adopted Date:	February 1992
Topic:	Witness/Subpoena	Revised / Effective Date:	September 2020

Municipal Clerk Handbook
Courts without JIS
Chapter Two – Pre-Trial/Trial Procedures

2.5 – Witness/Subpoena

References
Statutes: 33.095, 56.085, 479.160, 488.012, 491.100, 491.110, 491.280 and 491.420, RSMo
Supreme Court Rules: 26.02 and 37.55
Published: February 1992
Revised: September 2020

Introduction (Supreme Court Rule 37.55)

In preparing for trial, the prosecutor, the defendant, or the defendant's attorney may want to subpoena witnesses to testify.

A subpoena is the process served on a witness requiring appearance and testimony in a case. A subpoena duces tecum commands the person not only to appear but also to produce the books, papers, documents, or tangible things designated in the subpoena.

Issuance (Supreme Court Rule 37.55(a))

A subpoena signed by the judge or clerk, but otherwise blank, shall be provided to a party requesting it, who shall fill in the blanks before it is served. Any person who, without good cause, does not obey a subpoena, shall be subject to contempt of court proceedings. Subpoena Order to Appear/Produce Document/Give Depositions form is provided at the end of this section.

Service (Supreme Court Rule 37.55(d)(g))

A subpoena may be served by any peace officer or by any person who is not a party and who is not less than eighteen (18) years old. A subpoena may be served any place in the state.

Witness fees and mileage do not need to be collected upon service of the subpoena. Service shall be by reading or delivering a copy to the person being summoned. The offer to read or deliver the subpoena to a person refusing to hear or receive the subpoena shall be sufficient service.

Once a witness is subpoenaed before the court, he shall appear from time to time as requested until the case is disposed or he is finally discharged by the court. If the trial is continued, the judge shall orally notify such witnesses present as either party requests to attend on the new date set for hearing to give testimony. The oral notice shall be valid as a summons. The names of the witnesses so notified shall be entered on the docket. It shall be the sole responsibility of the respective parties or their attorneys to notify any witnesses not orally notified by the judge of the new date set for hearing, and court process shall be provided for such purpose when requested.

The Address Confidentiality Program allows a victim of domestic violence, rape, sexual assault or stalking to authorize the Secretary of State to designate an address for the receipt of first-class mail, legal documents, and certified mail. The court shall accept the address provided by the victim and process as the victim’s primary address, unless further indicated as confidential.

Return (Supreme Court Rule 37.55)

1. Every officer to whom a subpoena is delivered for service shall make a return in writing as to the time, place and manner of service and shall sign the return.

2. Service may be made by someone other than an officer, providing the person is not a party and is not less than eighteen years of age. If service is made by a person other than an officer, the person serving the subpoena shall make affidavit as to the time, place, and manner of service.

Fees (Sections 33.095, 479.160, 488.012, 491.280, and 491.420, RSMo)

1. Fees for witnesses shall be the same as those fixed for witnesses in trials before associate circuit judges, and are to be taxed as other costs in the case. Section

491.280

, RSMo, allows fees for witnesses as follows:

The rate for in-state witnesses is twenty-five dollars ($25.00) per day plus a mileage allowance at the state rate as provided in Section

33.095

, RSMo. The mileage rate is forty-three cents ($0.43).

The rate for out-of-state witnesses is fifteen dollars ($15.00) per day plus ten cents ($0.10) per mile.

Clerk's Duties/Procedures

1. If requested, prepare the subpoena form for service. Subpoena forms are included at the end of this section. See Section 491.100, RSMo for required contents of subpoena.

Note:

A subpoena shall be issued in blank to the person requesting it. It must contain the judge’s or clerk's signature and seal of the court. The requesting person completes the form before service.

Proof of Service of Subpoena

1. When the service return is filed with the court, the clerk shall file stamp (SCR 43.02) the return and provide a copy to the filer and place the original in the court's file.

Witness Fees and Claims

1. When the witness turns in a Witness Claim form, make sure it contains the witness’ signature, mailing address, the number of days attended and the number of miles traveled. Certify this information by dating and signing the Witness Claim form. See the Witness Claim section on page 2 of the Subpoena, Order to Appear/Produce Documents/Give Depositions form at the end of this section.

2. Make a docket entry on the case record to indicate the witness claim form was received and include any relevant details regarding the witness, as appropriate.

3. File the original document in the case file and follow local practices for paying witnesses.

4. Asses witness fees to the case and disburse to the city when payment is received from the defendant.

Note

: If the witness was not paid by the city beforehand disburse the witness fees to the witness.

Forms
MU 95 Subpeona Order to Appear/Produce Documents/Give Depositions