Rule 21 - Regalado.docx

RULE 21 – Subpoena

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Section 1 - Subpoena and subpoena duces tecum Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum

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Nature – Subpoena ad testificandum a. Technical and descriptive term for ordinary subpoena Section 2 - By whom issued

The subpoena may be issued by (a) the court before whom the witness is required to attend; (b) the court of the place where the deposition is to be taken; (c) the officer or body authorized by law to do so in connection with investigations conducted by said officer or body; or (d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. When application for a subpoena to a prisoner is made, the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any penal institution shall be brought outside the said penal institution for appearance or attendance in any court unless authorized by the Supreme Court

Enumeration of persons who may issue subpoenas has been expanded by – a. Inclusion of officer / body authorized by law in connection with investigations conducted by them 2. Municipal trial court’s authority to issue subpoena for attendance of prisoner before it – a. Even if the prisoner is not confined in a municipal jail Exception – 1. Prisoner has been sentenced to:  Death  Reclusion perpetua  Life imprisonment 2. Prisoner’s desired appearance has not been authorized by Supreme Court 1.

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Administrative Circular No. 6 – December 5, 1977 a. Last 2 paragraphs – precautionary measures evolved from judicial experience Section 3 - Form and contents

A subpoena shall state the name of the court and the title of the action or investigation, shall be directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall also contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant. Section 4 - Quashing a subpoena The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served.

Section 5 - Subpoena for depositions Proof of service of a notice to take a deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an order of the court. Section 6 – Service Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day's attendance and the kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be tendered. Section 7 - Personal appearance in court A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. Section 8 - Compelling attendance In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse. Section 9 – Contempt Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.

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Requisites to quash a ‘subpoena duces tecum’ upon a proof that – 1) Subpoena is unreasonable and oppressive 2) Articles sought to be produced do not appear to be prima facie relevant to the issues 3) The person asking for the subpoena does not advance the cost for production of the articles desired Section 4, Par. 2 – added to make it explicit that a ‘subpoena ad testificandum’ a. If the witness is not bound thereby – *Sec. 10

*Sec. 3 Rule 71 – indirect / constructive contempt

*Section 3, Rule 71 - Indirect contempt to be punished after charge and hearing – After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt. . . But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings

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Indirect contempt – a. To be punished only after written charge and hearing

Section 10 – Exceptions The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained.

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Necessity of making a ground for quashal of ‘subpoena duces tecum’ – a. Non-compliance that witness fees and kilometrage should be tendered upon service of subpoena – *Sec. 6  Requirement often deliberately / unknowingly overlooked

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Viatory right of a witness – a. Right not to be compelled to attend upon a subpoena by reason of distance from residence of witness to the place where he is to testify Availability of viatory right of a witness – a. People vs. Montejo – only in civil cases; not available in criminal cases 1997 Rules a. Does not distinguish as to whether or not the witness resides in the same province as the place where he is required to go and testify or produce documents b. Determinative – distance between both places does not exceed 100 kilometers by ordinary course of travel – generally by overland transportation