Defendant's Right To Subpoena Witnesses & Compel Their Testimony

• Jurisdiction: Maryland

II. Defendant's right to subpoena witnesses & compel their testimony

A. Generally

The right to compulsory process includes the right to subpoena admissible evidence. Davies v. State, 198 Md. App. 400, 419 (2011) (citing Wilson, 345 Md. at 450); Westley v. State, 251 Md. App. 365, 254 A.3d 106 (2021). Maryland Rule 4-266 governs the issuance of subpoenas to compel witnesses and documents in criminal cases.

"The right of compulsory process, under both the Federal and State Constitutions, though fundamental, is not absolute." Kelly, 392 Md. at 537 (citing Wilson, 345 Md. at 448); accord Allen v. State, 440 Md. 643, 677 (2014). It does not confer a right to present irrelevant or inadmissible evidence. Ibid.; Westley, 251 Md. App. at—, 254 A.3d at 128. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Id. at 128 (internal citations and quotations omitted).

B. Judicial assistance in obtaining witnesses, granting continuances, and permitting witnesses to testify

In Kelly, 392 Md. 511, the Court of Appeals stated: "The right to compulsory process does not end with the ability to subpoena witnesses to show up in court. That right includes the ability to elicit testimony from those witnesses present at trial. . . ." Id. at 535; see Wilson, 345 Md. at 446-47.

The right to compulsory process may entitle the defendant to (1) judicial assistance in obtaining witnesses; and/or (2) a continuance while the defendant attempts to locate witnesses. The "raison d'etre" of the right to compulsory process is the right to present a defense—a right which would hardly be served if it were limited to the issuance of a subpoena. Wilson, 345 Md. at 450. Therefore, "a necessary element in the concept of compulsory process" is judicial assistance to bring recalcitrant witnesses before the court. Id. (citations omitted).

Judicial assistance may include subpoena enforcement, body attachment, and/or bench warrants. As such, it may be an abuse of discretion for a court to deny assistance in securing witnesses if (1) the witness's testimony would be important, helpful, and non-cumulative; and (2) the defendant has made diligent efforts to secure the witness without judicial assistance. Wilson, 345 Md. at 449-50. In Van Meter v. State, 30 Md. App. 406, 412 (1976), the Court of Special Appeals held that the trial court did not abuse its discretion in declining to...