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How do you subpoena a witness to trial or subpoena a witness to court in South Carolina?
The answer depends on which court your case is in, whether you have an attorney, and where the witness lives, among other things. In this article, we will cover some of the basics of subpoenaing witnesses to trial in SC, including:
How you subpoena documents or witnesses, and whether you can issue a subpoena at all will depend on the facts of your case, including what court you are in, civil or criminal, magistrate or circuit court.
If you have an attorney, your attorney will handle the issuance of subpoenas for your trial or court hearings – make sure you let them know the names and contact information for potential witnesses early in your case, well in advance of trial, so they can investigate and interview all potential witnesses before you get to court.
If you do not have an attorney, you cannot issue subpoenas on your own, and you must go through the clerk of court’s office whether your case is criminal or civil.
Rule 13 of the SC Rules of Criminal Procedure says that “[u]pon the request of any party, the clerk of court shall issue subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court.”
The subpoena must include:
An attorney is authorized to issue and sign criminal subpoenas, but a pro-se defendant must get the clerk’s office to issue their subpoenas.
Magistrate Court or Municipal Court
In the magistrate court, the rules authorize parties to subpoena witnesses to trial or other court proceedings but only if the court is in the county where the witness lives, and parties cannot issue subpoenas duces tecum (subpoenas for documents).
General Sessions Court
In General Sessions Court, the parties can subpoena witnesses to court regardless of the county where they live but only if they live within the state of South Carolina, and the parties can issue subpoenas duces tecum for documents.
Subpoenas in DUI Cases
DUI cases in the magistrate or municipal court are a bit different. Although the rules do not permit subpoenas duces tecum in the magistrate court, SC law expressly allows defendants to issue subpoenas duces tecum in every driving under the influence (DUI) case.
SC Code § 56-5-2934 says that “[n]otwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930 [DUI], 56-5-2933 [DUAC], or 56-5-2945 [felony DUI] who is being tried in any court of competent jurisdiction in this State has the right to compulsory process for obtaining witnesses, documents, or both…”
Subpoenas can also be issued in civil cases in South Carolina, for trial, hearing, or deposition, and subpoenas can be issued for a witness’s appearance or documents. An attorney can issue a subpoena on their own signature, but a pro-se litigant must obtain subpoenas from the clerk’s office.
The civil rule for subpoenas, found in Rule 45 of the SC Rules of Civil Procedure, includes more details and guidance than the criminal rule for subpoenas, including:
There are different types of subpoenas, and the most common include:
Subpoenas can be served by the Sheriff’s Office or by any adult 18 years old or older who is not a party to the litigation. In most cases, subpoenas are served by the Sheriff or by a private investigator/ process server.
You should subpoena all witnesses to your trial, including friendly witnesses that have agreed to appear voluntarily, because 1) they might need the subpoena to show their employer, and 2) if the witness does not appear, and you want to ask the court for a continuance or for the court’s assistance in compelling the witness’s appearance, you will need to show the court proof that you subpoenaed them.
In every situation where a witness’s testimony is essential, you should subpoena the witness to court hearings, depositions, or trials.
Although many prosecutors in criminal cases will mail a subpoena to their out-of-state witnesses, and sometimes threaten them with jail if they do not appear, it is not lawful for a prosecutor to simply mail a subpoena to an out-of-state witness.
There is a process for securing the appearance of out-of-state witnesses in a criminal case, found in SC Code § 19-9-10, the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which involves getting a court order declaring that the witness is material and necessary from a local court and then getting a subpoena signed in the witness’s home state.
You don’t – there is no provision for subpoena of an out-of-state witness in a civil proceeding in South Carolina, although you can subpoena an essential witness to a deposition if you travel to their home county under SC Code § 15-47-100, the Uniform Interstate Depositions and Discovery Act.
If your witness does not appear at your court hearing, deposition, or trial, and if you can prove that you served them with a subpoena, you can ask for the court’s assistance in compelling the witness’s appearance – the court can send the sheriff’s office to bring the witness to court and has the power to hold a witness in contempt of court if they ignore a validly issued subpoena.
If the witness does not want to appear in court or produce the requested records, they should file a motion to quash the subpoena before the court date.
Questions about how to subpoena a witness to trial in South Carolina? If you do not have an attorney, you should immediately contact the Myrtle Beach trial lawyers at Axelrod and Associates for a free consultation to find out how we can help.
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