For the Defense - Volume 3, Issue 1 - 2018 - 47

served and ignored. Defense counsel should
avoid serving subpoenas.
Be cautious in your timing in serving your
subpoenas because you could be barred from
appealing a court's denial to issue a subpoena if
you attempted to secure testimony or documents
in an untimely fashion.28 In other words, you
can't expect relief from the Courts if you
subpoena someone the day before the hearing.
"A defendant cannot idly delay until the date
set for the criminal [hearing] and then request
compulsory process to secure witnesses in his or
her favor."29
If you can provide evidence that service was
properly made and a witness fails to appear for
court, you can request that a bench warrant be
issued to secure the testimony of a witness.30 A
completed return receipt card from the US Post
Office, shall be prima facie evidence of service of
the subpoena and a warrant can be issued in the
event a witness was served by certified mail and
has failed to show.31 Warrants will not be issued
if service was attempted through first class mail
and the witness fails to show.32 If the subpoena
is served in person, the person who actually
serves the witness should complete a return of
service. While this is not required for subpoenas
in criminal cases, it would be helpful in trying
to prove service was successful. The return of
service shall set forth the date, time, place and
manner of service, the identity of the person
served and any other facts necessary for the court
to determine whether proper service has been
made.33 If someone other than a Sheriff's Deputy
completes service, a notarized signed affidavit is
required to show proof of service.
Although warrants can be issued by the
Magisterial District Judge, a party seeking
to compel testimony or documents through
subpoena can motion the court of common pleas
to secure a witness through a warrant.

What challenges will the
Commonwealth raise?
The Commonwealth may object to defense
witnesses being presented at a preliminary
hearing. Before a court will compel a witness
to testify, the court may require that the party

desiring the testimony offer proof that the
witness has relevant testimony.34 When an offer
of proof is required by the Court, one suggestion
is that the response be in the form of an affidavit
from the witness outlining their testimony.35
Pennsylvania Rule of Criminal Procedure
542(C)(3) states that at a preliminary hearing, the
defense may "call witnesses on the defendant's
behalf, other than witnesses to the defendant's
good reputation only." The Comment says
that the defendant may call witnesses "only to
negate the existence of a prima facie case, and
not merely for the purpose of discovering the
Commonwealth's case." So, preparing a proffer
that goes directly to elements of the charges
should preserve the issue if the magisterial
district judge declines to permit testimony by the
defense witness.
The Commonwealth, if aware of subpoenaed
witnesses ahead of time, may file a motion to
quash the subpoena with the Court of Common
Pleas. Whether a subpoena is enforced is a
matter of judicial discretion which can only be
overcome on appeal if the record shows an abuse
of that discretion.36 Non-constitutional challenges
including overbreadth and improper inclusion
of irrelevant information are common.37 These
challenges will generally be made with respect
to subpoenas duces tecum. Be prepared to argue
against these types of challenges. Be ready to
show how the information you have requested or
the testimony you wish to put on is relevant and
does not go beyond the scope of negating the
Commonwealth's prima facie case.
Additionally, challenges to testimony
or documents often arise where the
Commonwealth claims the information is
privileged. The compulsory process is subject
to whatever limitations may be imposed by
statutory privilege.38 "[A] criminal defendant's
confrontation and compulsory process rights
under the Pennsylvania Constitution must yield
to [an absolute statutory privilege.]"39 However,
those privileges that are not statutory in nature
must "yield" to a defendant's constitutional
rights to due process and confrontation, so long
as the defendant can show a reasonable basis for
the request.40

Vol. 3, Issue 1

l

For The Defense

47



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
For the Defense - Volume 3, Issue 1 - 2018 - 36
For the Defense - Volume 3, Issue 1 - 2018 - 37
For the Defense - Volume 3, Issue 1 - 2018 - 38
For the Defense - Volume 3, Issue 1 - 2018 - 39
For the Defense - Volume 3, Issue 1 - 2018 - 40
For the Defense - Volume 3, Issue 1 - 2018 - 41
For the Defense - Volume 3, Issue 1 - 2018 - 42
For the Defense - Volume 3, Issue 1 - 2018 - 43
For the Defense - Volume 3, Issue 1 - 2018 - 44
For the Defense - Volume 3, Issue 1 - 2018 - 45
For the Defense - Volume 3, Issue 1 - 2018 - 46
For the Defense - Volume 3, Issue 1 - 2018 - 47
For the Defense - Volume 3, Issue 1 - 2018 - 48
For the Defense - Volume 3, Issue 1 - 2018 - 49
For the Defense - Volume 3, Issue 1 - 2018 - 50
For the Defense - Volume 3, Issue 1 - 2018 - 51
For the Defense - Volume 3, Issue 1 - 2018 - 52
For the Defense - Volume 3, Issue 1 - 2018 - 53
For the Defense - Volume 3, Issue 1 - 2018 - 54
For the Defense - Volume 3, Issue 1 - 2018 - 55
For the Defense - Volume 3, Issue 1 - 2018 - 56
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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