Prosecutors and Use of Subpoenas

Abstract

How some prosecutors have been treating victims, witnesses, and others has recently been in the news. News reports include prosecutors arresting victims for failing to testify, including a rape victim who was incarcerated for 27 days in order to ensure that she would testify. The woman, who suffered from schizophrenia and bipolar disorder, had a mental breakdown on the stand on the first day of trial and spent 10 days in a mental hospital. In a recent disciplinary case, a disciplinary panel has recommended a public reprimand against a prosecutor who used subpoenas in an effort to pressure and embarrass people who filed character letters for use at a sentencing hearing. These instances illustrate the controversy surrounding some prosecutors’ use of subpoenas. When does a prosecutor cross the line when using coercive measures, such as subpoenas, to obtain cooperation by victims, witnesses, and others in pursuing the conviction and punishment of those accused of violating the law? In this paper, we explore where that line may be.

Keywords: legal ethics, professional responsibility, rules of professional conduct, subpoenas, criminal procedure, criminal law, prosecutors, ethics

JEL Classification: K14, K19, K41, K42, K39