Synopsis: Missouri's prosecutorial subpoena statute gives prosecutors the power to subpoena information and materials prior to the filing of criminal charges. This new criminal procedure, which has virtually replaced grand juries in some states, will be a hot topic in Missouri for several years as its boundaries are established on a case by case basis. This article collects established law from other jurisdictions to help Missouri lawyers confront the issues likely to arise.
There can be no doubt that the county prosecutors of this state . . . have a duty to investigate all criminal activity which comes to their attention, and that the [inquisition] statute is a primary tool entrusted to them by the legislature to assist in that function.
Judge J. Daniel Foth
Kansas Court of Appeals
Southwestern Bell Telephone Company v. Miller1
[The Subpoena Powers Act] vastly extends the compulsory inquisitorial power of state and county prosecutors over both citizens and government officials. . . our history is fraught with examples of abuses of such inquisitorial powers by government officials. . . . The majority fails to recognize that it deals with grand jury powers without the restraining effect of grand jurors.
Judge I. Daniel Stewart
Utah Supreme Court
Matter of Criminal Investigation, 7th District Court No. CS-12
Introduction
In 1995 the Missouri legislature bestowed upon law enforcement officials a new tool for criminal investigations -- the investigative subpoena.3 Like grand jury subpoenas, they can be issued prior to the filing of any criminal charge, allowing prosecutors to gather extensive information before making a decision whether to charge someone with a crime.4 The Supreme Court of Missouri upheld the constitutionality of investigative subpoenas in 1996.5 Prosecutors, judges and attorneys need to be aware of this fledgling law enforcement weapon, and of the procedures involved in obtaining them and fighting them. Used correctly, they provide prosecutors with another valid resource for ferreting out crime and for making sure only the guilty are charged. Used overzealously, they pose potential risks to the privacy of innocent people. The law of investigative subpoenas will likely be a hot topic in criminal law for several years as the boundaries of this new criminal procedure are established on a case by case basis.
Historical Background
Traditionally, a prosecutor in a county with a grand jury has been able, through grand jury subpoena power, to compel testimony or evidence prior to the filing of a charge. Grand jury subpoena power dates back to twelfth century England and has led to a large body of law setting the parameters of the power to subpoena.6 Investigative subpoena power is particularly helpful in situations where an eye-witness is refusing to tell the police what he or she saw, or when reviewing non-public records like medical records or bank records would help a prosecutor decide whether to file a charge. The Florida Supreme Court has observed that without investigatory subpoenas, "criminal activity could be hidden behind a 'wall of silence' . . . based simply on an individual's desire not to get 'involved,' fear of retaliation, dislike for the substantive law, or private code against 'snitching.'"7 The amassing of a wealth of data prior to the filing of any charge helps assure that the prosecutor or grand jury makes the right decision whether sufficient evidence exists to charge a person with a crime, helps gather the evidence to convict the guilty, and likewise helps prevent innocent people from being incorrectly charged.
In counties without a grand jury, by far the majority of jurisdictions in Missouri, a prosecutor has historically enjoyed no subpoena power prior to the filing of a criminal charge.8 In cases where a prosecutor had probable cause to believe that particular evidence of a crime was located in a particular place, he or she could seek a search warrant for the evidence.9 Absent particularized probable cause, though, the prosecutor in a county without a grand jury had no means to compel production of records or testimony until after charging a defendant with a crime. Thus, in some situations, the prosecutor had to file a criminal charge based upon probable cause that the suspect had committed the crime, while keeping fingers crossed that the subpoenaed records would say what they were expected to say. The creation of criminal investigative subpoenas gives prosecutors throughout Missouri equal power to amass all important facts before charging someone with a crime. Missouri is not unique in establishing criminal investigative subpoenas. Prosecutors in Alabama, Florida, Kansas and Louisiana have exercised investigative subpoena power for many decades.10 Twelve states have similar laws.11
Getting an Investigative Subpoena
The investigative subpoena statute reads as follows:
In the course of a criminal investigation, the prosecuting or circuit attorney may request the circuit judge to issue a subpoena to any witness who may have information for the purpose of oral examination under oath to require the production of books, papers, records, or other material of any evidentiary nature at the office of the prosecuting or circuit attorney requesting the subpoena.12
The 63-word statute, while admirable in brevity, is not overburdened with clarity. As a result, several issues await further development.
One issue is whether a circuit judge is the only judge who can issue an investigatory subpoena. The statute specifically uses the phrase "circuit judge." Although in many instances an associate circuit judge enjoys the same powers as a circuit judge, there appears to be no getting around the explicit wording of the statute. The search warrant statute, by contrast, specifically says that any judge may issue a search warrant.13 The legislature could have used the same language had it meant for associate circuit judges to be allowed to issue investigative subpoenas. It seems logical to assume, however, that a presiding circuit judge could assign an associate circuit judge to handle investigatory subpoena requests in the same way that the associate judge can be assigned other classes of cases normally handled by a circuit judge.14
Another issue is whether assistant prosecutors may request investigatory subpoenas. Although assistants are not expressly named in the statute, prior cases have held that a reference to the prosecuting attorney in criminal procedural rules automatically includes the assistant prosecuting attorney since "the office commands from both the same qualifications and the same duty."15 Therefore, assistant prosecutors are not barred from seeking them.
Another question involves the sort of paperwork the prosecutor should file to get an investigatory subpoena. A written application for a subpoena should be submitted to the court, explaining briefly that the evidence or testimony sought is expected to be material to a pending criminal investigation. Unlike search warrants, the amount of proof necessary for the issuance of a subpoena need not amount to probable cause.16 Like a grand jury, the prosecutor can investigate "merely on suspicion that the law is being violated, or even just because [he or she] wants assurance that it is not."17 There only needs to be a reasonable explanation as to why the evidence or testimony sought "could be relevant to some legitimate criminal investigation."18 Once this is done, "a prima facie showing of relevance and legitimacy is created which is ordinarily irrebuttable."19 One reason for the low standard is that the prosecutor, just like a grand jury, cannot be required to justify the issuance of a subpoena by presenting evidence sufficient to establish probable cause "because the very purpose of requesting the information is to ascertain whether probable cause exists."20 On the other hand, the Utah investigatory subpoena statute specifically requires a prosecutor to show "good cause" for the investigation, and its Supreme Court said in dictum that "mere suspicion" or "whim" is "clearly not enough to justify putting the judicial subpoena power into the hands of prosecutors."21
The difference between a search warrant and an investigatory subpoena is of paramount importance in understanding why probable cause is needed for the search warrant but not for the subpoena. In explaining why the Fourth Amendment requirement of probable cause for search warrants does not apply to subpoenas, the United States Supreme Court quoted Judge Henry J. Friendly of the Second Circuit Court of Appeals:
The [search warrant] is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.22
A prosecutor's investigative subpoena is "not as intrinsically intrusive as a search warrant."23 No officer will ever use a battering ram on a citizen's door to serve an investigatory subpoena. No officer will personally rummage through a citizen's drawers looking for an item specified in a subpoena. No officer bearing a subpoena will even cross the threshold of a citizen's home unless invited.24 Rather, the witness is served with a piece of paper telling him or her to appear at a stated date and place, with sufficient time between service and attendance to consult a lawyer about the possibility of filing a motion to quash the subpoena, and the witness might successfully avoid complying with it entirely if he or she can convince the judge that the subpoena is unreasonable or oppressive.25 Conversely, no mechanism exists to quash a search warrant before the intrusion has occurred once probable cause has been found and the search warrant wheels are in motion. Police officers executing a search warrant do not knock on the door and say, "Excuse me, we'll just wait outside and give you time to file a motion to quash!"
Another potential issue is whether an investigatory subpoena may issue strictly for the purpose of requiring a witness to appear at the prosecutor's office to give sworn testimony, or whether it is limited to simply requiring a witness to bring specified books, papers, records or materials to the office. The statute would be more clear if the word "and" appeared between the words "oral examination under oath" and "to require the production of books, papers, records, or other material." In general, ambiguity in criminal statutes is to be resolved against the State.26 Nevertheless, since the statute specifically says the witness may be subpoenaed "for the purpose of oral examination under oath," it seems probable that the statute grants the prosecutor the power to compel a witness to come to the prosecutor's office to give sworn testimony, even if the witness is not being asked to bring along any particular physical evidence. In a remarkably similar situation, the Kansas Court of Appeals held that a prosecutorial investigative subpoena statute mentioning only "to appear and testify" should also be construed as allowing the prosecutor to require the witness to bring specified items.27 The court noted that the general rule calling for strict construction of criminal statutes did not apply to an investigative subpoena statute because "the power to investigate crimes and issue subpoenas has nothing penal about it."28
Some confusion initially arose as to how the clerk's office should handle investigative subpoenas as far as assigning case numbers to them and filing them, since no criminal charge had yet been filed and thus no criminal case existed at the time the subpoena was issued. The Office of State Court Administrator has instructed that an investigative subpoena should be handled "for record-keeping purposes in the same way as a search warrant."29 The investigatory subpoenas are to be maintained as court records in a file folder in alphabetical order by the name of the person subpoenaed.30 Arrangements for service of the subpoena are to be made by the prosecuting or circuit attorney requesting it.31
Another issue is whether the files at the clerk's office pertaining to investigative subpoenas are considered public records prior to the filing of any charge. The body of law that has developed holding search warrant files open to the public would undoubtedly apply equally to investigative subpoenas; thus, absent a motion to seal the file, the records pertaining to the subpoena would be public records, available to the snooping public upon request.32 Similarly, the Utah Supreme Court has held that a provision allowing for investigative subpoena records to be closed should be narrowly construed because of "the lack of historical precedent for allowing secret, non-grand jury inquisitions."33
Complying with an Investigative Subpoena
An investigative subpoena should inform the witness where and when to appear at the prosecutor's office, and what he or she should bring, if anything. The subpoena should include the address and telephone number of the prosecutor, so the witness can call if there are any questions. Enough lead time should be given in the request to allow the witness to gather the necessary materials or to take steps to challenge the legality of the subpoena if so desired. Although Missouri's investigative subpoena statute does not say exactly how much advance notice must be given, its Michigan counterpart specifically requires prosecutorial investigative subpoenas to be served "not less than 7 days before the date set for the taking of testimony or examination of records" unless the issuing judge has shortened the period of time for good cause shown.34 At any rate, it is certainly true that a subpoenaed person must have a meaningful opportunity to challenge the lawfulness of a subpoena.35
In some situations, the prosecutor or a subpoenaed witness might be required to notify the target of the investigation that the information has been subpoenaed. Although it is well-established in most jurisdictions that bank and telephone customers have no Fourth Amendment reasonable expectation of privacy in their records,36 banks must comply with financial disclosure laws.37 In some jurisdictions, the state must give a hospital patient notice that his or her records are being sought by subpoena.38
Failure on the part of the witness to comply with the subpoena can result in his being found in contempt of court. In Johnson v. State,39 the witness refused to comply with the subpoena and was jailed for contempt, posted bond, and appealed. The Supreme Court of Missouri proved the law has teeth by affirming the trial court's incarceration of the witness.
The investigatory subpoena statute is silent as to whether a witness should be allowed to have an attorney accompany him to the prosecutor's office for the "oral examination." Inasmuch as the Supreme Court of Missouri has so closely analogized investigatory subpoenas to grand jury testimony, a prosecutor could probably bar an attorney from attending the meeting since there is no right to assistance of counsel before the grand jury.40 In reversing a trial judge who tried to order the prosecutor to allow an attorney to be present for the questioning of a witness, Florida held that "there is no constitutional or statutory right to have counsel present when a witness is interrogated by a prosecuting official."41 The same case also held, however, that the trial court properly used its "inherent authority of the court to act whenever necessary to protect the interests of minors" to allow a six-year-old witness to have her mother and an attorney present during her questioning.42 In contrast, the Michigan, Utah, Kansas, Louisiana and Montana prosecutorial investigative subpoena statutes specifically provide that a witness has a right to have legal counsel present.43
In another analogy to grand jury procedures, it is probably not necessary for the prosecutor conducting an "oral examination" to record it.44 If a witness being examined in response to an investigative subpoena has been given immunity for his or her testimony, however, it may be necessary to record it in the same manner as if given to a grand jury.45 Unlike grand jury practice, however, it is permissible for the prosecutor to question the witness in the presence of a law enforcement officer.46 The Florida Court of Appeals noted that "the presence of a law enforcement officer during questioning by a prosecutor enables the investigating officer to assist the questioner in bringing to light facts relevant to the investigation."47 It is improper, though, for the officer to question the witness in the absence of the prosecutor.48
Attacking an Investigative Subpoena
When a person wishes to challenge an investigative subpoena, the proper procedure is to file a motion to quash the subpoena with the judge who issued it.49 A party must have standing to file a motion to quash or to seek to prevent the state from using information obtained via investigative subpoena.50 Some cases have held that only the person to whom the subpoena was issued has standing to move to quash it, and though a bank or telephone company may move to quash a subpoena for customer's records, the customer lacks standing to do so.51 Recent financial privacy laws specifically give a person standing to object to the disclosure of his or her bank records in response to a subpoena.52 Upon a timely motion to quash, the court should hold a hearing to determine whether to void or modify the subpoena if compliance with it would be unreasonable or oppressive.53 The burden of proof will be upon the witness to show that the subpoena is unreasonable.54 It is the same with grand jury subpoenas, where the burden of showing unreasonableness is upon the recipient who seeks to avoid compliance.55
Although the investigative subpoena statute has been found constitutional on its face, it is always possible that a particular subpoena may be unconstitutionally overbroad. Both the United States Supreme Court and the Supreme Court of Missouri hold that a subpoena, to be reasonable under the Fourth Amendment, must be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.56 Examples of subpoenas that have been found to be unreasonable, oppressive or overbroad include a subpoena issued to officers of a corporation to bring "any and all" records of the corporation "from date of inception" to the present,57 and a subpoena issued to labor union officials to produce "all books, papers, and records of whatever kind and nature, pertaining to the employment, pay and discharge of employees."58 In 1970, the Florida Court of Appeals referred to an overly broad prosecutor's investigatory subpoena calling for "all" corporate records as being a "fishing expedition" that might as well have said: "Just bring the works -- the whole works."59 The Supreme Court of Missouri has said that subpoenas calling for books, records and documents "must designate and specify with some reasonable degree of certainty and particularity" the documents and papers sought to be produced and a "broad and sweeping" demand for "any and all" books is generally not a sufficient designation.60
An investigatory subpoena may be quashed on the ground that it is oppressive. The Louisiana Supreme Court found oppressive and unreasonable a prosecutor's subpoena for the defendant to submit a second batch of handwriting samples without any explanation to the court as to why the extensive samples previously supplied by the defendant in response to a prior investigatory subpoena were inadequate.61
An investigatory subpoena may also be quashed on the ground that no true criminal investigation is in progress. This foundational requirement will not be difficult to meet in most cases. Other states with similar statutes have held that the only showing required to indicate that a criminal investigation is in progress is some recitation by the prosecutor outlining the generic nature of the subject matter sought to be investigated.62 If the prosecutor's recitation shows merely a potential civil action, however, rather than a criminal matter, the trial judge could properly refuse to issue the subpoena.63
An investigatory subpoena may be attacked on the ground that it could not possibly lead to relevant evidence. The United States Supreme Court has recently articulated the standard for challenging a grand jury subpoena on relevancy grounds, holding that the motion to quash must be denied unless the court determines that "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation."64 For example, it would be improper for the prosecutor to subpoena "all the medical records of a patient from all of the patient's health care providers without there being a scintilla of evidence to suggest that any of the medical records are relevant to a pending criminal investigation."65 Likewise, a court voided for lack of relevance a prosecutor's investigatory subpoena for the disclosure of the names of all campaign contributors to the Arkansas Republican Party.66 The prosecutor claimed he was conducting a bona fide investigation of the Arkansas election laws, but the court ruled that there had been no showing that a list of every single contributor could be reasonably relevant to the investigation of alleged vote fraud.67
An investigatory subpoena might also be challenged on the ground that it is unreasonable in that it calls for the production of information so old that any criminal prosecution would be barred by the statute of limitations. A recent Iowa case, however, upheld the validity of an investigatory subpoena calling for information going back five years, including activity too stale to prosecute, pointing out that "such transactions may nevertheless be relevant to issues in other cases which are not subject to a statute of limitations defense."68
A witness appearing in response to an investigatory subpoena may assert his or her Fifth Amendment right against self-incrimination in the same way that a witness before a grand jury can "take the Fifth." A subpoena can be quashed if it seeks materials whereby the very act of producing them (such as stolen items or controlled substances) would amount to self-incrimination.69 Under federal and Missouri law, it is not necessary for a grand jury witness to be specifically given Miranda warnings70 nor to be told that he or she is a target of the investigation.71 The Utah Supreme Court has nevertheless held that under its state constitution a person responding to a prosecutor's investigatory subpoena must receive a modified Miranda warning, informing the witness about the general subject matter of the investigation, warning that he or she may refuse to answer questions that would result in self-incrimination, warning that any information provided could be used against the witness, and warning the witness if he or she is a target of the investigation.72 The Utah court required these warnings because of its view that an interrogation by a prosecutor in the prosecutor's office, "though comparable in many respects to an appearance before a grand jury, is more coercive and thus raises greater self-incrimination concerns."73
A witness may succeed in quashing a subpoena or refusing to testify on the ground that compliance would violate a testimonial privilege such as attorney-client,74 marital communication,75 priest-penitent,76 accountant-client,77 physician-patient,78 psychologist-patient,79 licensed professional counselor-patient,80 or dentist-patient.81 The various privileges apply to grand jury testimony82 and to records as well as testimony.83 Privileges are often narrowly construed, however, and have numerous exceptions.84 The doctor-patient privilege, for example, includes exceptions for blood alcohol levels in DWI cases,85 for situations involving child abuse or neglect,86 and for communications made to medical personnel in an effort to obtain controlled substances.87 The marital communication and attorney-client privileges do not apply to statements the defendant makes regarding the defendant's intent to commit a future crime.88 In cases where a testimonial privilege is alleged, the court may choose to review the materials in camera before deciding whether to quash the subpoena.89
Potential Uses of Investigative Subpoenas
The potential uses of investigative subpoenas are limited only by the imagination of the prosecutor and the bounds of reasonableness. As the Supreme Court of Missouri has said, a prosecutor armed with investigative subpoena power "stands in essentially the same position as the grand jury and is governed by similar limitations."90 Like its fraternal twin, the grand jury subpoena, an investigative subpoena might be issued:
(1) For bank records showing whether a bad check suspect has written other bad checks, the balance of the account, the signature card, or the date the account was closed;91
(2) For financial records or books and ledgers of a person or corporation suspected of fraudulent activity, unfair trade practices, or the depositing of large sums of stolen money or drug sale proceeds;92
(3) For medical records pertaining to the blood alcohol level of a suspect in a DWI or involuntary manslaughter case;93
(4) For medical records or testimony pertaining to wounds a murder or rape suspect may have acquired during the attack upon the victim, unless barred by physician-patient privilege;
(5) For telephone records corroborating the placing of certain calls at certain times or to certain places;94
(6) For the testimony of a recalcitrant witness, such as someone who saw a drive-by shooting but refuses to tell police officers what happened;95
(7) For the testimony of a family member or friend who may have heard the suspect make admissions or may have seen the suspect hide or destroy evidence;96
(8) For the suspect to submit to a taking of fingerprint samples for comparison to those left at the scene of a crime;97
(9) For a suspect to submit to the taking of a photograph, so that it can be put into a lineup to be shown to a victim;98
(10) For a suspect to participate in a physical lineup to be viewed by the victim;99
(11) For a suspect to submit to the taking of a blood sample for DNA or other genetic testing for comparison to samples left at a crime scene;100
(12) For a suspect to give a voice sample for comparison to a voice on tape;101
(13) For a suspect to appear to display a limp, tattoo, or scar described by a victim;
(14) For a suspect in a forgery case to give a handwriting sample;102
(15) For airline or other transportation records pertaining to the travel of the suspect;
(16) For utility records or papers showing occupancy or ownership of a suspected drug house or excessive electrical use showing a marijuana growing operation;103
(17) For sales records pertaining to a weapon thought to have been used in a crime;
(18) For sales records pertaining to materials commonly used to manufacture illegal drugs or weapons;
(19) For motel records showing that the suspect was staying in the area at the time of the crime;
(20) For VISA, Mastercard or other credit card records showing purchases of materials used to commit or cover up a crime;
(21) For a private club's employees to bring books, records and invoices pertaining to a gambling investigation;104
(22) For a library to supply a list of patrons who have checked out a book about bomb-making in a bombing case, or witchcraft in an animal mutilation case.105
Potential Abuses of Investigative Subpoenas
Over the years, thoughtful people have voiced fears of the possibility of "run-away" grand juries creating modern law enforcement practices "as odious to American citizens as the Star Chamber was to Englishmen, or the Spanish Inquisition to the civilized world."106 The potentiality of a run-away Rambo prosecutor, a one-man renegade grand jury, is a potential danger now that prosecutors have investigative subpoena power, especially since subpoenas may be issued even without the traditional safeguard of probable cause. One judicial critic of investigatory subpoenas has warned, "Overly zealous people who act in the name of some 'higher' principle and run roughshod over the rights of others are to be found in every generation."107 Former Supreme Court Justice Louis D. Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning, but without understanding."108 Recognizing that the potential for abuse exists, the Supreme Court of Missouri has noted that courts have always maintained control over subpoenas.109 Controls over investigative subpoenas include the requirements that the prosecutor must be "in the course of a criminal investigation" in order to request one; a circuit judge must then review the subpoena before it issues; and the subpoena may be challenged via a motion to quash if compliance would be unreasonable or oppressive.110 As long as judges remain vigilant in requiring prosecutors to articulate a valid reason for the issuance of a subpoena, and don't become merely black-robed rubber stamps for overzealous prosecutors, a rogue Rambo prosecutor won't do much damage before self-destructing.
An unethical prosecutor using prosecutorial subpoena power in a fishing expedition out of malice against a particular individual would not get far with the inquisition before it would be curtailed. In Johnson v. State,111 the Supreme Court of Missouri instructed that in seeking investigatory subpoenas the prosecutor is "governed by similar limitations" as a grand jury. Grand juries "are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass."112 A witness being harassed by an overzealous prosecutor may claim gross abuse of process in a motion to quash, supported by affidavit, and once the allegation is made the prosecutor would be required "to disclose to the court sufficient facts to show that he is acting within the scope of his official duty."113
A prosecutor who attempted to use investigatory subpoena power to perpetuate testimony would probably find the attempt unsuccessful. Other state courts have held that an investigatory subpoena is "not intended to be used as a device to allow the prosecution to perpetuate testimony for trial."114 The Iowa Supreme Court observed that the procedure differed from a deposition since there was no meaningful opportunity for cross-examination, but added that such testimony normally will be admissible for impeachment purposes.115 The court hinted that the investigatory subpoena process might be used to perpetuate testimony upon agreement of the parties or after full participation by defense counsel with knowledge of the proposed use of the testimony.116
The Missouri investigatory subpoena statute does not address the question whether it can be used by a prosecutor after a charge has been filed. Missouri prosecutors, especially in metropolitan areas, have been using investigative subpoenas as post-indictment tools.117 Other states have held that the prosecutor may issue an investigatory subpoena after a charge is filed, but may not use it as a scheme to avoid complying with discovery rules already activated by the filing of the charge.118 The Louisiana Supreme Court ruled improper a prosecutor's use of an investigatory subpoena, mid-trial, to force a defense psychologist witness to turn over to him her test data and test results pertaining to the defendant.119 The Arkansas Supreme Court held it improper for the prosecutor to use the statute to compel witnesses to testify before him in the presence of all the other witnesses three days before the trial, under threat of perjury, since such a procedure could pressure a recalcitrant witness to conform her testimony to the others.120
Conclusion
The use of criminal investigative subpoenas in Missouri will increase dramatically during the coming years. Once Kansas and Arkansas adopted prosecutorial investigative subpoena statutes, grand juries became "relatively rare" in those states,121 since the investigative subpoena "largely replaced the grand jury investigation as a working tool of law enforcement."122 Kansas, not prone to letting unpleasant historical connotations ruin a perfectly good word, chose to call its prosecutorial investigative subpoena proceedings "inquisitions."123 Although critics of criminal investigative subpoenas fear the possibility of prosecutors running amok as one-man grand juries, delving into the private lives of innocent citizens without articulable probable cause, the body of law pertaining to investigative and grand jury subpoenas and limitations upon them will provide adequate guidance for trial courts to ensure that this new investigative tool is a source of justice and not a source of mischief.
Footnotes
1 583 P.2d 1042, 1045 (Kan. App. 1978).
2 754 P.2d 633, 660-662 (Utah 1988).
3 Section 56.085, RSMo. 1994. A sample form for an investigatory subpoena is contained in § 300.12 of the Missouri Court Clerk Handbook, Volume II, Office of State Courts Administrator, April 1996.
4 See generally John Wesley Hall, Jr., The Prosecutor's Subpoena Power, 33 Ark. L. Rev. 122 (1979).
5 Johnson v. State, 925 S.W.2d 834 (Mo. banc 1996).
6 See generally 19 William A. Knox, Missouri Practice, Criminal Practice and Procedure, §§ 221-231 (1995).
7 Doe v. State, 634 So. 2d 613, 615 (Fla. 1994), quoting 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 8 (1984).
8 State v. Scott, 262 S.W.2d 614 (Mo. banc 1953).
9 Illinois v. Gates, 462 U.S. 213 (1983); State v. Berry, 801 S.W.2d 64 (Mo. banc 1990).
10 Ark. Code Ann. § 16-43-212 (Michie 1994); Fla. Stat. Ann. § 27.04 (West Supp. 1997); Kan. Stat. Ann. § 22-3101 (1995); La. Code Crim. Proc. Ann. art. 66 (West Supp. 1991).
11 Ark. Code Ann. § 16-43-212 (Michie 1994); Del. Code Ann. tit. 29, § 2508 (1991); Fla. Stat. Ann. § 27.04 (West Supp. 1997); Haw. Rev. Stat. § 28-2.5 (1993); Iowa Code Ann. § 813.2, Rule 5, subd. 6 (West Supp. 1996); Ind. Code Ann. § 33-14-1-3 (Michnie 1992); Kan. Stat. Ann. § 22-3101 (1995); La. Code Crim. Proc. Ann. art. 66 (West Supp. 1997); Mich. Comp. Laws Ann. § 767A (West Supp. 1997); Mont. Code Ann. § 46-4-301 (1997); Or. Rev. Stat. § 180.073 (1996); Utah Code Ann. § 77-22-2 (1995).
12 Section 56.085, RSMo 1994.
13 Section 542.266.2, RSMo 1994.
14 Section 478.240, RSMo 1994. See State ex rel. McNaul v. Bonacker, 711 S.W.2d 566 (Mo. App. S.D. 1986).
15 State v. Elgin, 391 S.W.2d 341, 343 (Mo. 1965); State v. Tierney, 584 S.W.2d 618, 620 (Mo. App. W.D. 1979); Rule 19.05.
16 Johnson v. State, 925 S.W.2d 834, 836 (Mo. banc. 1996); Wyche v. State, 536 So. 2d 272, 275 (Fla. App. 1988); In re Thompson v. State, 479 N.E.2d 1344, 1346 (Ind. App. 1985).
17 United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991); State v. Kelley, 353 N.W. 2d 845, 848 (Iowa 1984).
18 State v. Kelley, 353 N.W.2d 845, 848 (Iowa 1984).
19 Id.
20 See United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991).
21 In the Matter of a Criminal Investigation, 7th District Court No. CS-1, 754 P.2d 633, 644, n. 11 (Utah 1988).
22 United States v. Dionisio, 410 U.S. 1, 10 (1973), quoting United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972).
23 State v. Baldwin, 789 P.2d 1215, 1219 (Mont. 1990).
24 Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 195 (1946).
25 Johnson v. State, 925 S.W.2d 834 (Mo. banc 1996); Rule 26.02(c).
26 State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992).
27 Southwestern Bell Tel. Co. v. Miller, 583 P.2d 1042, 1044 (Kan. App. 1978). See also In the Matter of Ewing B. Hawkins, 123 A.2d 113 (Del. 1956); In re Order For Indiana Bell Telephone To Disclose Records v. State, 409 N.E.2d 1089, 1092 (Ind. 1980); Marston's, Inc. v. Strand, 560 P.2d 778 (Ariz. 1977).
28 Southwestern Bell, 583 P.2d at 1044.
29 Missouri Court Clerk Handbook, Volume II, § 300.12, Office of State Courts Administrator (1996).
30 Id.
31 Id.
32 Section 109.180, RSMo 1994. See also In the Matter of the Application and Affidavit for a Search Warrant, Washington Post Co. v. Hughes, 923 F.2d 324 (4th Cir. 1991); In re Application of Newsday, Inc. v. Newsday, Inc., 895 F.2d 74 (2d Cir. 1990); In re The Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); The Times Mirror Co. v. U.S., 873 F.2d 1210 (9th Cir. 1989); Certain Interested Individuals, John Does I-V, Who are Employees of McDonnell Douglas Corp. v. Pulitzer Publishing Co., 895 F.2d 460 (8th Cir. 1990); In re Search Warrant for Secretarial Area, 855 F.2d 569 (8th Cir. 1988); In the Matter of Sealed (Affidavits) to Search Warrants v. Agosto, 600 F.2d 1256 (9th Cir. 1979); In the Matter of Search Warrants Issued on June 11, 1988, 710 F. Supp. 701 (D. Minn 1989); In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207 (D.R.I. 1980); Thomas M. Bradshaw & Dianne M. Hansen, Search Warrants for Business Records: Challenges and Defenses, 49 J. Mo. Bar 23, 25-27 (1993).
33 In the Matter of Criminal Investigation, 7th District Court No. CS-1, 754 P.2d 633, 656 (Utah 1988).
34 Mich. Comp. Laws Ann. § 767A.4(2) (West 1995).
35 Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984).
36 Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425 U.S. 435 (1976); State v. Schultz, 850 P.2d 818 (Kan. 1993). But see State v. Thompson, 810 P.2d 415 (Utah 1991).
37 Sections 408.683-408.700, RSMo 1994; 12 U.S.C. § 3401 (1988).
38 Hunter v. State, 639 So. 2d 72, 73 (Fla. App. 1994).
39 925 S.W.2d 834 (Mo. banc 1996).
40 United States v. Mandujano, 425 U.S. 564 (1976); State v. Thomas, 529 S.W.2d 379 (Mo. 1975); Gordon v. Gerstein, 189 So.2d 873 (Fla. 1966).
41 State v. Sievert, 312 So. 2d 788, 791 (Fla. App. 1975). Creamer v. State, 447 So.2d 978 (Fla. App. 1984) (holding that although no right exists for attorney to participate in the questioning, it is improper to bar the attorney's presence unless he is disrupting the investigation).
42 Sievert at 791.
43 Kan. Stat. Ann. § 22-3104 (1995); La. Code Crim. Proc. art. 66 (West Supp. 1997); Mich. Comp. Laws Ann. § 767A.5(3) (West Supp. 1997); Mont. Code Ann. § 46-4-301 (1997); Utah Code Ann. § 77-22-2 (1995).
44 State v. Greer, 605 S.W.2d 93, vacated 451 U.S. 1013, on remand, 619 S.W.2d 65 (Mo. 1981); State v. Thomas, 674 S.W.2d 131 (Mo. App. E.D. 1984); State v. Garcia, 682 S.W.2d 12 (Mo. App. W.D. 1984).
45 Mo. Ann. Stat. § 491.205 (West Supp. 1997).
46 In re Getty, 427 So.2d 380, 383 (Fla. App. 1983); cf. State v. Eyman, 828 S.W.2d 883, 887 (Mo. App. W.D. 1992).
47 Getty, at 383.
48 State v. Hamzy, 709 S.W.2d 397 (Ark. 1986); Foster v. State, 687 S.W.2d 829, 831 (Ark. 1985); Duckett v. State, 600 S.W.2d 18 (Ark. App. 1980).
49 Johnson v. State, 925 S.W.2d 834 (Mo. banc. 1996); Rule 26.02(c). For a sample form of a motion to quash an investigating grand jury subpoena, which would be virtually identical to a motion to quash a prosecutor's investigatory subpoena, see 27 Donald L. Wolff & Susan Sherberg Kister, Missouri Practice § 5.1 (1993).
50 Duckett v. State, 600 S.W.2d 18 (Ark. App. 1980).
51 State v. Schultz, 850 P.2d 818 (Kan. 1993); State v. Hamzy, 709 S.W.2d 397 (Ark. 1986); Pollard v. Roberts, 283 F. Supp. 248, 259 (E.D. Ark. 1968); Kyle Steadman, Constitutional Law: Kansans Have No Reasonable Expectation of Privacy in Bank or Telephone Records [State v. Scultz, 850 P.2d 818 (Kan. 1993)], 33 Washburn L. J. 466 (1994). See also Duckett v. State, 600 S.W.2d 18 (Ark. App. 1980); In re Order For Indiana Bell Telephone to Disclose Records v. State, 409 N.E.2d 1089, 1090 (Ind. 1980).
52 Sections 408.683-408.700, RSMo 1994; 12 U.S.C. § 3401 (1988).
53 Johnson v. State, 925 S.W.2d 834, 837 (Mo. banc. 1996); Rule 26.02(c).
54 Matanuska Maid, Inc. v. State, 620 P.2d 182, 192 (Alaska 1980).
55 United States v. R. Enters., Inc., 498 U.S. 292, 300 (1991).
56 See v. City of Seattle, 387 U.S. 541, 544 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984); Johnson v. State, 925 S.W.2d 834, 836 (Mo. banc. 1996).
57 Imparato v. Spicola, 238 So. 2d 503 (Fla. App. 1970).
58 State v. Scott, 262 S.W.2d 614 (Mo. banc 1953).
59 Imparato v. Spicola, 238 So. 2d 503, 507-510 (Fla. App. 1970).
60 State v. Scott, 262 S.W.2d 614, 619 (Mo. banc 1953).
61 State v. Cacioppo, 390 So.2d 523 (La. 1980).
62 State v. Kelley, 353 N.W.2d 845, 848 (Iowa 1984).
63 State ex rel. Cranford v. Bishop, 640 P.2d 1271 (Kan. 1982).
64 United Stated v. R. Enters., 498 U.S. 292, 301 (1991).
65 Hunter v. State, 639 So. 2d 72, 74 (Fla. App. 1994).
66 Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark. 1968).
67 This case was also decided upon First Amendment freedom of association and privacy grounds. Id. at 258.
68 State v. Kelley, 353 N.W.2d 845, 849 (Iowa 1984).
69 Doe v. United States, 487 U.S. 201 (1988).
70 United States v. Mandujano, 425 U.S. 564 (1976); United States v. Bednar, 728 F.2d 1043 (8th Cir. 1984). However, when a witness has been arrested and brought to testify, rather than simply being served with a subpoena, Miranda warnings must be given. State v. Eyman, 828 S.W.2d 883 (Mo. App. W.D. 1992).
71 United States v. Washington, 431 U.S. 181 (1977). It is a "sensible practice," though, to warn witnesses who are potential "targets" of the investigation. 28 Robert H. Dierker, Jr., Missouri Practice, Missouri Criminal Practice Handbook, § 5.8(1)(a) (1997).
72 In the Matter of Criminal Investigation, 7th District Court No. CS-1, 754 P.2d 633, 648 (Utah 1988).
73 Id. at 648.
74 See § 491.060(3), RSMo 1994; Fisher v. United States, 425 U.S. 391 (1976); State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 79 (Mo. banc 1984).
75 Section 546.260, RSMo 1994; Trammel v. United States, 445 U.S. 40 (1980); State v. Alexander, 729 S.W.2d 486 (Mo. App. W.D. 1987).
76 Section 491.060(4), RSMo 1994; In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990); In the Matter of Grand Jury Subpoena for Verplank, 329 F. Supp. 433 (1971); State v. Kurtz, 564 S.W.2d 856, 860 (Mo. banc 1978).
77 Section 326.151, RSMo 1994; Couch v. United States, 409 U.S. 322 (1973).
78 Section 491.060(5), RSMo 1994; In re Grand Jury Proceedings, 801 F.2d 1164 (9th Cir. 1986); State v. Evans, 802 S.W.2d 507, 510 (Mo. banc 1991); State v. Waring, 779 S.W.2d 736 (Mo. App. S.D. 1989).
79 Sections 491.060(5) and 337.055, RSMo 1994.
80 Section 337.540, RSMo 1994; Johnson v. Johnson, 839 S.W.2d 714, 718 (Mo. App. W.D. 1992).
81 Section 491.060(5), RSMo 1994.
82 In re Grand Jury Proceedings, 918 F.2d 374, 379 (1990); State ex rel. Friedman v. Provaznik, 668 S.W.2d 76 (Mo. banc 1984).
83 See Gonzenbach v. Lasky, 641 S.W.2d 430, 432 (Mo. App. E.D. 1982); Klinge v. Lutheran Med. Ctr. of St. Louis, 518 S.W.2d 157, 165 (Mo. App. E.D. 1974); Wanda Ellen Wakefield, Annotation, Physician-Patient Privilege as Extending to Patient's Medical or Hospital Records, 10 A.L.R.4th 553 (1981).
84 State v. Kurtz, 564 S.W.2d 856, 860 (Mo. banc 1978); William A. Schroeder, Medical Privileges Under Missouri Law, 46 J. Mo. Bar 305, 305 (1990).
85 Section 577.037.1, RSMo 1994. See State v. Waring, 779 S.W.2d 736, 739-741 (Mo. App. S.D. 1989); State v. Trice, 747 S.W.2d 243, 247 (Mo. App. W.D. 1988).
86 Section 210.140, RSMo 1994. See State ex rel. D.M. v. Hoester, 681 S.W.2d 449, 450 (Mo. banc 1984).
87 Section 195.204, RSMo 1994.
88 State v. Heistand, 708 S.W.2d 125, 126 (Mo. banc 1986); Burger v. Crocker, 392 S.W.2d 640, 645 (Mo. App. E.D. 1965).
89 State ex rel. Friedman v. Provaznik, 668 S.W.2d 76 (Mo. banc 1984).
90 Johnson v. State, 925 S.W.2d 834, 837 (Mo. banc 1996).
91 In re Thompson v. State, 479 N.E.2d 1344 (Ind. App. 1985).
92 Matanuska Maid, Inc. v. State, 620 P.2d 182 (Alaska 1980); State v. National Research Sys., Inc., 459 So.2d 1134 (Fla. App. 1984); Marsland v. First Hawaiian Bank, 764 P.2d 1228 (Hawaii 1988); Chidester v. Needles, 353 N.W.2d 849 (Iowa 1984); State v. Kelley, 353 N.W.2d 845 (Iowa 1984); In re Morris Thrift Pharmacy, 397 So.2d 1301 (La. 1981).
93 Ussery v. State, 654 So. 2d 561 (Fla. App. 1995); Hunter v. State, 639 So. 2d 72 (Fla. App. 1994); State v. Todd, 935 S.W.2d 55 (Mo. App. E.D. 1996).
94 State v. Baldwin, 789 P.2d 1215 (Mont. 1990); Southwestern Bell Tel. Co. v. Miller, 583 P.2d 1042 (Kan. App. 1978); Annotation, "Search and Seizure of Telephone Company Records Pertaining to Subscriber as Violation of Subscriber's Constitutional Rights," 76 A.L.R.4th 536 (1990).
95 Lee v. State, 526 N.E.2d 963, 965 (Ind. 1988).
96 Creamer v. State, 447 So.2d 978 (Fla. App. 1984).
97 Doe v. State, 634 So. 2d 613 (Fla. 1994); Wyche v. State, 536 So. 2d 272 (Fla. App. 1988).
98 Wyche v. State, 536 So. 2d 272, 273 (Fla. App. 1988).
99 In re Maguire, 571 F.2d 675 (1st Cir. 1978).
100 Henry v. Ryan, 775 F. Supp. 247, 254 (N.D. Ill. 1991); In the Matter of an Investigation Into the Death of Abe A. Jon L., 437 N.E.2d 265 (N.Y. App. 1982). Some courts, however, have held that a subpoena duces tecum compelling the drawing of blood from a witness is inappropriate and subject to a motion to quash. In re Grand Jury Proceedings, 816 F. Supp. 1196 (W.D. Ky. 1993) (holding that search warrant based upon probable cause is required for drawing of blood); 2 William E. Ringel, Searches & Seizures, Arrests and Confessions, § 18.2(c) (1994).
101 United States v. Dionisio, 410 U.S. 1 (1973); Wyche v. State, 536 So. 2d 272, 274 (Fla. App. 1988).
102 United States v. Mara, 410 U.S. 19 (1973); Doe v. Florida, 634 So. 2d 613 (Fla. 1994); Wyche v. State, 536 So. 2d 272, 274 (Fla. App. 1988); State v. Cacioppo, 390 So.2d 523 (La. 1980).
103 State v. Baldwin, 789 P.2d 1215 (Mont. 1990).
104 State ex rel Miller v. Rohleder, 490 P.2d 374 (Kan. 1971).
105 Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983). In Missouri, a court issuing a subpoena for library records must make a finding that the disclosure of such record "is necessary to protect the public safety or to prosecute a crime." Section 182.817.2, RSMo 1994.
106 State v. Scott, 262 S.W.2d 614, 619 (Mo. banc 1953); see also Robert L. Howard, The Inquisition in Kansas -- Its Use, Disuse, and Abuse, 6 Kan. L. Rev. 452 (1958).
107 In the Matter of a Criminal Investigation, 7th District Court No. CS-1, 754 P.2d 633, 662 (Utah. 1988) (Stewart, dissenting).
108 Olmstead v. United States, 277 U.S. 438, 478 (1928).
109 Johnson v. State, 925 S.W.2d 834, 837 (Mo. banc 1996).
110 Id.
111 925 S.W.2d 834 (Mo. banc 1996).
112 United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216 (1946).
113 In the Matter of Henry C. Eastburn & Son, Inc., 147 A.2d 921, 924 (Del. 1959).
114 State v. Hobson, 671 P.2d 1365, 1376 (Kan. 1983); State v. Hamilton, 309 N.W.2d 471, 478 (Iowa 1981).
115 Hamilton, 309 N.W.2d at 478. See also State v. Williams, 617 So.2d 557, 561 (La. App. 1993); Slavens v. State, 614 S.W.2d 529, 534 (Ark. App. 1981).
116 Hamilton, 309 N.W.2d at 478.
117 28 Robert H. Dierker, Jr., Missouri Practice, Missouri Criminal Practice Handbook, § 5.4(2) (1997).
118 Able Builders Sanitation Co. v. State, 368 So. 2d 1340 (Fla. App. 1979). See also State v. Hobson, 671 P.2d 1365, 1374 (Kan. 1983); Collier v. Baker, 20 So.2d 652 (Fla. 1945).
119 State v. Rachal, 362 So.2d 737 (La. 1978).
120 Cook v. State, 623 S.W.2d 820 (Ark. 1981).
121 Southwestern Bell Tel. Co. v. Miller, 583 P.2d 1042, 1048 (Kan. App. 1978); Todd v. State, 678 S.W.2d 345, 346 (Ark. 1984).
122 Southwestern Bell, 583 P.2d at 1048.
123 Kan. Stat. Ann. § 22-3012 (1995).
1997, H. Morley Swingle
Mr. Swingle is the Prosecuting Attorney of Cape Girardeau County. He is a 1980 graduate of the University of Missouri-Columbia School of Law. He would like to thank third-year law student Abbie Crites-Leoni for her help with the research for this article.