For the Defense - Volume 3, Issue 1 - 2018 - 48

In Commonwealth v. Mejia-Arias, the
Commonwealth sought review of whether a
defendant may subpoena the personnel files
of the agents who arrested him.41 The Court
held that the defense counsel is entitled to
review information in the agents' files regarding
complaints and/or investigations into the agents'
malfeasance in swearing out affidavits. However,
the Court further held that the subpoenas that
were issued were too broad and that even
though the personal information of the officers
was not protected by a statutory privilege,
there is a strong public interest in protecting
the privacy and safety of an officer's personal
information. Because the defense could not show
a reasonable basis for requesting the entire file
and the personal information was not relevant
to the defendant's search for impeachment
material, the Court ruled that the subpoenas
should have been vacated.
When responding to these Commonwealth
challenges, the focus must remain on the
defendant's right to call witnesses on his or her
behalf to negate the Commonwealth's prima
facie case. Any evidence deemed to negate the
Commonwealth's case must logically be deemed
to be relevant. If the evidence you seek is not
subject to a statutory privilege and is relevant
to your case, the Court should not quash your
subpoena.
In addition to responses based upon a
defendant's right at a preliminary hearing,
defense counsel should continue to raise
a constitutional challenge, i.e., allowing a
prima facie case to be established entirely on
hearsay evidence is a violation of due process.42
Because Ricker and its progeny are Superior
Court decisions, they have no authority to
"evade" rulings of the Supreme Court.43 If the
Commonwealth fails to call a witness and relies
solely on hearsay evidence, argue, in addition
to a violation of the confrontation clause, that
allowing a prima facie case solely based on
that evidence is in violation of due process.44 If
the Court does not wish to further violate the
Defendant's due process rights, the Defendant
should be allowed to call witnesses to negate the
Commonwealth's prima facie case.45

48

For The Defense

l

Vol. 3, Issue 1

Strategic considerations in using the
Magisterial Subpoena Power
Be strategic in calling merely exculpatory
witnesses at a preliminary hearing. The prima
facie burden is very low and calling those
witnesses may tip your hand and help the
Commonwealth prepare tools for impeachment
later without actually raising the probability that
you will be successful in obtaining a dismissal at
the preliminary hearing. As noted earlier, just
because you subpoena someone, does not mean
you must always call them as a witness. Take
prosecutors to task. There may be more behind a
prosecutor's reasoning for only calling a hearsay
witness than the ability to use fewer witnesses.
The prosecutor will have to confront the issues
in their case if you have subpoenaed relevant
witnesses that may point out the weaknesses in
your case. The mere presence of those witnesses
can affect plea negotiations and the overall
outcome of your case without ever having to call
those witnesses to the stand.
Additionally, the Commonwealth must
certify that a witness will appear for trial if
another witness is utilized to testify to hearsay
statements. The Commonwealth will not be able
to certify that a witness will be available for trial
if they have been subpoenaed for a preliminary
hearing and have failed to appear. Binding
over any case, especially felony charges for trial
without a certification that the witnesses are
available for trial is a violation of due process.46
This presents another reason to subpoena a
possibly unavailable witness to a preliminary
hearing.
In closing, utilizing the subpoena powers of
the magisterial district judge will allow you to
represent your client effectively by attempting
to negate the Commonwealth's prima facie case.
Remind the Magisterial District Judge that he
or she is to determine the existence or absence
of probable cause. If Magisterial District Judges
simply moves every charge to court without
permitting the defense to compel and present
evidence relevant to his/her probable cause
determination, then their true role and function
is not being fulfilled. Subpoenas in a post-Ricker
criminal justice system are a valuable tool for



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
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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
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For the Defense - Volume 3, Issue 1 - 2018 - 33
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For the Defense - Volume 3, Issue 1 - 2018 - 35
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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
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