Compelling Attendance
Subpoena for a hearing or trial
• Subpoena for a hearing or trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of court of the county in which the action is pending when requested, or, in the case of a subpoena for the taking of a deposition, by the clerk of court of the county in which the action is so pending or in the county in which the deposition is being taken. An attorney admitted to practice law in this state, as an officer of the court, may also issue and sign such subpoenas on behalf of the court in which the action is pending or a court of the county in which the deposition is being taken, if the hearing, deposition or production pertains to an action pending in a court where the attorney has appeared for a party in that case. A subpoena may be served at any place within the state; and when permitted by the laws of the United States, this or another state or foreign country, the court upon proper application and cause shown may authorize the service of a subpoena outside the state in accordance with and as permitted by such law.
• Accordingly, by assuming Burton's defense in his absence, while having full knowledge of his incarceration and of the necessity for a writ or subpoena to secure his attendance at trial, Gallant waived the right to thereafter raise the defense of non-cooperation based solely on Burton's failure to appear and is now estopped from asserting the same in proceedings supplemental.
Gallant Ins. Co. v. Wilkerson, 720 N.E.2d 1223, 1229 (Ind. Ct. App. 1999)
Contempt
• Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued, or court of the county where the witness was required thereunder to appear or act. The attendance of all witnesses when duly subpoenaed, and to whom fees have been paid or tendered as required by law may be enforced by attachment.
• Her failure to obey the subpoena to appear and testify was contempt under Ind.R.Tr.P. 45(f) and the court had the authority to issue a bench warrant to order that she be physically arrested and produced in open court for that purpose.
Jordan v. State, 432 N.E.2d 9, 13 (Ind. 1982)
• Indiana Rule of Trial Procedure 45(F) indicates that "failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of court." Defendant thus had the opportunity to compel these witnesses to attend the depositions, but did not take full advantage of the methods available to him.
Glover v. State, 441 N.E.2d 1360, 1363 (Ind. 1982)
Incarcerated witness
• [T]he standard applicable to ruling upon a motion to produce a witness incarcerated in a penal institution is whether the defendant has shown that the testimony of the incarcerated witness is material to the case.
Stevenson v. State, 656 N.E.2d 476, 478 (Ind. 1995)
Defendant’s right to compulsory process
• The United States Supreme Court discussed the constitutional guarantee to compulsory process for obtaining witnesses in Washington v. Texas, 388 U.S. 14 (1967). It stated:
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, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Davis v. State, 529 N.E.2d 112, 114 (Ind. Ct. App. 1988)
• Under Washington, two inquiries must be made when the denial of such a right is alleged:
1) whether the trial court arbitrarily denied the Sixth Amendment rights of the person calling the witness, and
2) whether the witness was competent to testify and his testimony would have been relevant and material to the defense.