Rule 26 | Misdemeanors or Felonies – Witnesses – Subpoena

First Adopted: June 13, 1979

Most Recently Effective: January 01, 1980

Rule 26 | Rules of Criminal Procedure | Misdemeanors or Felonies – Witnesses – Subpoena

26.01 | Misdemeanors or Felonies – Process for Witnesses

The state and defendant shall be entitled to process for witnesses.

Committee note – 1979

This is substantially the same as the first sentence of prior Rule 25.14 and the first sentence of prior Rule 25.15.


(Adopted June 13, 1979, effective January 1, 1980.)

First Adopted: June 13, 1979

Most Recently Effective: January 01, 1980

Rule 26 | Rules of Criminal Procedure | Misdemeanors or Felonies – Witnesses – Subpoena

26.02 | Misdemeanors or Felonies – Witnesses – Subpoena

(a) For Attendance of Witnesses; Form; Issuance. A subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title of the proceedings and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. he clerk shall issue a subpoena, signed and sealed but otherwise in blank to a party requesting it, who shall fill in the blank before it is served.

(b) For Production of Documentary Evidence and of Objects. A subpoena duces tecum may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein.

(c) Motion to Quash or Modify. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, or objects designated in a subpoena duces tecum be produced before the court at a time prior to the trial or prior to the time when they are offered in evidence and may upon their production permit the books, papers, documents, or objects, or portions thereof, to be inspected by the parties or their attorneys.

(d) Service – Tender of Fees and Mileage Not Required. A subpoena may be served by the sheriff or by any other person who is not a party and who is not less than eighteen years of age. Service of the subpoena shall be made by delivering a copy thereof to the person named. A subpoena may be served any place within the state. Fees and mileage need not be tendered to the witness upon service of a subpoena.

(e) Return.

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

(2) If service of such subpoena is made by a person other than an officer such person shall make affidavit as to the time, place, and manner of service thereof.

(f) For Taking Deposition. Service of a notice to take a deposition authorizes the clerk of the court or a notary public to issue subpoenas for the persons named or described therein.

(g) Contempt. Any person who, without good cause, does not obey a subpoena shall be subject to contempt of court proceedings.

Committee Note – 1979

Paragraph (a) is the same as Fed.R.Crim.P. 17(a). Compare: Prior Rule 25.14 and prior Rule 25.15.

Paragraph (b) is the same as the first sentence of Fed.R.Crim.P. 17(c) with the addition of the term "duces tecum." Compare: Prior Rule 25.19.

Paragraph (c) is the same as the last two sentences of Fed.R.Crim.P. 17(c) with the addition of the term "duces tecum." Compare: Prior Rule 25.19.

The sources of paragraph (d) are prior Rule 25.20, prior Rule 25.21 and Fed.R.Crim.P. 17(d) and (e). 

Paragraph (e) is substantially the same as Rule 54.20(a). Compare: Prior Rule 25.20.

The source of paragraph (f) is Fed.R.Crim.P. 17(f)(1). Compare: Prior Rule 25.14 and prior Rule 25.15.

Paragraph (g) is substantially the same as Fed.R.Crim.P. 17(g). Compare: Prior Rule 25.20.


(Adopted June 13, 1979, effective January 1, 1980.)

First Adopted: June 13, 1979

Most Recently Effective: January 01, 1980

Rule 26 | Rules of Criminal Procedure | Misdemeanors or Felonies – Witnesses – Subpoena

26.03 | Misdemeanors or Felonies – Witnesses – Continuing Obligation to Attend

Whenever a witness in a criminal proceeding has been once subpoenaed or required to give bail to appear before any court, he shall attend from time to time, until the case is disposed of or he is finally discharged by the court. The witness shall be liable to attachment and bail may be forfeited for failure to appear if the witness has received notice of the time and place to appear.

Committee Note – 1979

The sources of the first sentence are prior Rule 25.17 and prior Rule 25.18.

The second sentence is new.


(Adopted June 13, 1979, effective January 1, 1980.)

First Adopted: June 13, 1979

Most Recently Effective: January 01, 1980

Rule 26 | Rules of Criminal Procedure | Misdemeanors or Felonies – Witnesses – Subpoena

26.04 | Misdemeanors or Felonies – Witness in Custody – Habeas Corpus

A judge shall have power, upon the application of any party to a criminal proceeding pending in such court, to issue a writ of habeas corpus for the purpose of bringing before such court any person who may be detained in jail or prison, or who may be otherwise in custody, to be a witness on behalf of the applicant. The application shall state that the testimony of such witness is material and necessary to the applicant on the trial or any hearing in such criminal proceedings.

Committee Note – 1979

The source is prior Rule 25.16. The rule has been expanded to include persons in mental hospitals, mental institutions, and in custody of juvenile officials. The last sentence of Rule 25.16 requiring verification has been deleted.


(Adopted June 13, 1979, effective January 1, 1980.)