Any person within the area of the court’s jurisdiction can be compelled to attend a trial or hearing, give testimony and bring to the hearing certain designated documents by the use of a subpoena.21 The jurisdiction of the Court of Chancery, the Superior Court, the Court of Common Pleas, the Family Court and the Justice of the Peace is statewide, and their process may be issued out of and into each county.22
A subpoena is a command of a court directing the person named in the subpoena to appear at a certain time and place, on a certain date, to give testimony on a certain matter.23 A subpoena, issued by the clerk of the court in which the cause is to be heard, shows the seal of the court, the name of the court and the title of the action and commands the witness to appear and testify at a specified time and place, and, if a subpoena duces tecurn, identifies the documents to be brought.24
Parties may obtain blank subpoenas from the clerk’s office of the relevant court, fill them out by entering the information described above and return them to the clerk’s office for service. Subpoenas may be served by any Sheriff, Deputy Sheriff or other person not less than 18 years old, including a private special process server hired by a party. Service must be made upon the person who is named in the subpoena.25 If the witness to be called is a minor, the subpoena must be directed to the child’s guardian, directing the guardian to bring the child to the hearing.
Since the Sheriff and the Sheriff’s deputies have no authority beyond their own respective counties, if the subpoena is to be served by the Sheriff’s office, it will be necessary that the subpoena be directed to the Sheriff of the county in which the person to be served can be found.
An attorney who desires to present at trial witnesses whose testimony is necessary or desirable for the client’s case can receive protection in case of the absence of the witness only by subpoenaing the witness. If the attorney has not requested a subpoena and exercised diligence to see that it is served, the absence of the witness will not be a ground for a continuance of the trial. If there is a valid reason for the absence of the witness, such as sudden illness, the court may grant a continuance, but it is not advisable for an attorney to rely on this. If a witness who has been properly subpoenaed fails to appear on the day of trial, the party who caused the subpoena to be issued may ask for a continuance and for an attachment for such absent witness. If, however, an attorney proceeds with the trial of a case where a witness who has been subpoenaed is not present, without asking for a continuance or an attachment to compel the attendance of such witness, the attorney assumes the risk that the witness will not appear.26 In any event, an absent witness who has been duly subpoenaed is liable to the aggrieved party in a separate civil suit for all damages occasioned by such failure to attend, absent a reasonable excuse for being absent.27 The absent witness also may be held in contempt of court.28
21. 10 Del. C. § 362; 11 Del. C. § 5102; Ch. Ct. R. 45; Super. Ct. Civ. R. 45; Super. Ct. Crim. R. 17; Comm. Pls. Ct. Civ. R. 45; Comm. Pls. Ct. Cr. R. 17; Fam. Ct. Civ. R. 45; Fam. Ct. Cr. R. 17; J.P. Ct. Civ. R. 18; J.P. Ct. Cr. R. 13; AId. & M. Ct. R. 12. The right of a criminal defendant to compel the attendance of witnesses to testify in its behalf derives from the Sixth Amendment to the Constitution of the United States and Article I, § 7 of the Constitution of the State of Delaware. Keshishian v. State, 386 A.2d 666, 667 (Del. 1978). Presumably, the right of civil litigants to compel the presence of witnesses derives from principles of due process. Cf. Truman v. Watts, 598 A.2d 713, 719 (Del. Fam. 1991).
22. Del. Const. art. IV, § 16.
23. In re In re McGowen, 303 A.2d 645, 647 (Del. 1973).
24. Ch. Ct. R. 45(a), (b); Super. Ct. Civ. R. 45(a), (b); Super Ct. Crim. R. 17(a)(l), (b); Comm. Pls. Ct. Civ. R. 45(a), (b); Comm. Pls. Ct. Cr. R. 17(a), (b); Fam. Ct. Civ. R. 45(1); Fam. Ct. Cr. R. 17(a), (b); J.P. Ct. Civ. R. 18(a), (b); J.P. Ct. Cr. R. 13(a), (b); Ald. & M. Ct. R. 12(a),(b).
25. Ch. Ct. R. 45(c); Super. Ct. Civ. R. 45(c); Super. Ct. Crim. R. 17(d); Comm. Pls. Ct. Civ. R. 45(c); Comm. Pls. Ct. Cr. R. 17(d); Fam. Ct. Civ. R. 45(c); Fam Ct. Cr. R. 17(d); J.P. Ct. Civ. R. 18(c); J.P. Ct. Cr. R. 13(c); Ald. & M. Ct. R. 12(c).
26. Haas v. Jones, 93 A.2d 915, 917 (Del. Super. 1953).
27. 10 Del. C. § 4301.
28. Ch. Ct. R. 45(f); Super. Ct. Civ. R. 45(f); Super. Ct. Crim. R. 17(g); Comm. Pls. Ct. Civ. R. 45(f); Comm. Pls. Ct. Cr. R. 17(g); Fam, Ct. Civ. R. 45(f); Fam. Ct. Cr. R. 17(g); J.P. Ct. Civ. R. 18(d); J.P. Ct. Cr. R. 13(d); Ald. & M. Ct. R. 12(d).
© 2010 David L. Finger