HSC Limits Scope of Subpoena Duces Tecum in Criminal Cases

Honolulu Police Dept. v. Town (HSC February 4, 2010)

Background. Odeb Kay was charged with various felonies. Kay obtained discoverable material from the prosecution regarding the complaining witness's criminal history. Kay issued and served a subpoena duces tecum on the Honolulu Police Department pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 17(b). Kay wanted five police reports made in connection with an arrest of the complaining witness. HPD moved to quash on the grounds that it was impermissible discovery and an attempt to circumvent discovery requests from the prosecutor. The motion to quash was denied. HPD petitioned for a writ of mandamus.

Mandamus is Proper Because HPD--a Third Party--is Not Permitted to Appeal. The right to appeal from a criminal case "exists only when given by some constitutional or statutory provision." Grattifiori v. State, 79 Hawai'i 10, 13, 897 P.2d 937, 940 (1990). The parties in criminal cases may appeal pursuant to HRS §§ 641-11 and 641-17. HPD is not a party to this case and cannot appeal from the order denying the motion to quash. According to the HSC, its proper redress through the "extraordinary remedy" of mandamus. Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999).

HRPP Rule 16: Criminal Discovery. HRPP Rule 16 applies to felony prosecutions. The prosecutor must disclose to the defendant within ten calendar days of the arraignment and plea materials that fall into seven categories listed in HRPP Rule 16(b)(1). HRPP Rule 16(e)(1). Generally, it is "any material which tends to negate the guilty of the defendant as to the offense charged or would tend to reduce the defendant's punishment therefor." HRPP Rule 16(b)(1)(vii)

HRPP Rule 17(b): the Subpoena Duces Tecum. The subpoena duces tecum is described in HRPP Rule 17(b). "The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence[.]" Id.

Subpoena Duces Tecum Limited to "Evidence" not Discoverable Material or Information. "It is generally recognized that in criminal cases the subpoena duces tecum was not intended to provide an additional means of discovery." State v. Pacarro, 61 Haw. 84, 87-88, 595 P.2d 295, 297-98 (1979). The HSC reaffirmed Pacarro and agreed with the HPD that a subpoena duces tecum cannot circumvent the discovery procedures outlined in HRPP Rule 16(b). According to the HSC, HRPP Rule 17(b) is modeled after Federal Rules of Criminal Procedure Rule 17(c), and the federal courts that examined the federal rule have held that the subpoena duces tecum cannot be used as a means of discovery. Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951); United States v. Nixon, 418 U.S. 683, 698 (1974).

The HSC found a distinction between the defendant's right to discovery outlined in HRPP Rule 16 and the right to compel the production of documents by subpoena under HRPP Rule 17(b). See People v. Morrison, 559 N.Y.S.2d 1013, 1017 (N.Y. Crim. Ct. 1990). The subpoena duces tecum is limited to the production of things that "must be of an evidentiary nature[.]" State v. Pacarro, 61 Haw. at 87, 595 P2d at 298. According to the HSC, the right to compel the production of documents under the subpoena power is "limited to the compulsion of 'evidence' and is not a right to compel the production of documents that provide leads to potential evidence." The HSC--in affirming Pacarro--held that HRPP Rule 17(b) does not allow the defendant to directly subpoena governmental personnel for discoverable material or information. HRPP Rule 16(b)(2) cannot be ignored.

Police Reports were Merely Discoverable, not Evidence. Kay's lawyer--the public defender--requested five police reports selected from the complaining witness's criminal history list. The circuit court found that these reports may provide impeachment material or assist Kay in pretrial motions and investigation. The HSC initially pointed out that the finding was inconsistent with Kay's request because the issued subpoena showed that Kay did not know the contents of the materials being subpoenaed.

"For purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is inadmissible except when the crime is one involving dishonesty." Hawai'i Rules of Evidence (HRE) Rule 608. Because Kay did not know whether the subpoenaed police reports involved crimes of dishonesty, it was not a subpoena duces tecum for impeachment evidence or any other evidence "that, at the time the subpoena was issued, met the tests of relevancy and admissibility."

So when it's Discoverable . . . Instead, according to the HSC, it sought merely "discoverable" materials, which is regulated by HRPP Rule 16. "Upon written request of defense counsel and specific designation by defense counsel of material or information which would be discoverable if in the possession or control of the prosecutor and which is in the possession or control of other governmental personnel," the prosecutor must use "diligent good faith efforts to cause such material or information to be made available to defense counsel[.]" HRPP Rule 16(b)(2). If the prosecutor's efforts are "unsuccessful" the court "shall issue suitable subpoenas or orders to cause such material or information to be made available to defense counsel." Id.

According to the HSC, this was the proper procedure, and it should have been followed. There should have been a written request to the prosecutor for the police reports thereby triggering the prosecutor's duty to get them from HPD. If the prosecutor's efforts were unsuccessful, then the circuit court, "upon motion" must subpoena the documents from the HPD.

Subpoenas Limited to Actual Evidence. The HSC held that the subpoena duces tecum sought material that went beyond its legal scope. HRPP Rule 17(b) subpoenas are limited to "evidence," that is, admissible evidence. HRE Rule 401 and 402. The HSC made much of the fact that Kay's lawyer did not know the contents of the police reports and, therefore, it was impossible for the subpoena to seek only admissible evidence. The HSC limited its examination of "admissible evidence" to convictions of crimes of dishonesty. Is that really fair? The police reports could contained bad acts that would be admissible under HRE Rule 402. It could contain evidence of habits that may be relevant and admissible. HRE Rule 406. It could even contain inconsistent statements made by the complaining witness. HRE Rule 613. All of these bases constitute "relevant and admissible evidence" that would arguably fit within the limits of HRPP Rule 17(b) subpoenas. But that is beside the point. Because it was impossible to know what was in those reports, then it could not have been properly limited to evidence no matter what.

But What About Non-Governmental Discoverable Materials? HRPP Rule 16(b)(2) applies only to materials "which would be discoverable if in the possession or control of the prosecutor and which is in the possession or control of other governmental personnel[.]" A lot of discoverable material out there (e.g. surveillance tapes, reports, etc.) is held by private entities--like the humane society, shopping malls, or even newspapers. Because it is not held by "other governmental personnel," it does not come within the ambit of HRPP Rule 16(b)(2). And because it is impossible to know whether the materials contain actual evidence, it would be outside the scope of HRPP Rule 17(b) subpoenas. What is the defendant to do? Is there no remedy?

Justice Acoba's Concurrence. Justice Acoba concurred in the result only.