2021 Georgia Code
Title 24 - Evidence
Chapter 13 - Securing Attendance of Witnesses and Production and Preservation of Evidence
Article 2 - Subpoenas and Notice to Produce
§ 24-13-21. Subpoena for Attendance of Witnesses - Form; Issuance; Subpoena in Blank

Universal Citation: GA Code § 24-13-21 (2021)
  1. As used in this Code section, the term "subpoena" includes a witness subpoena and a subpoena for the production of evidence.
  2. A subpoena shall state the name of the court, the name of the clerk, and the title of the proceeding and shall command each person to whom it is directed to attend and give testimony or produce evidence at a time and place specified by the subpoena.
  3. The clerk of court shall make subpoenas in blank available on demand by electronic or other means to parties or their counsel or to the grand jury.
  4. An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.
  5. A district attorney may issue, and upon the request of the grand jury shall issue, a subpoena in grand jury proceedings.
  6. A subpoena shall be completed prior to being served.
  7. Subpoenas are enforceable as provided in Code Section 24-13-26.
  8. If an individual misuses a subpoena, he or she shall be subject to punishment for contempt of court and shall be punished by a fine of not more than $300.00 or not more than 20 days' imprisonment, or both.

(Code 1981, §24-13-21, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2012, p. 775, § 24/HB 942.)

Cross references.

- Subpoena, Fed. R. Civ. P. 45.

Subpoena, Fed. R. Crim. P. 17.

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (h).

Law reviews.

- For article, "Best Practices for Issuing Subpoenas Depositions of Georgia Residents in Cases Pending Out of State," see 12 Ga. St. B.J. 12 (2007).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5260, former Civil Code 1910, § 5849, former Code 1933, § 38-1501, Ga. L. 1966, p. 502, § 1, Ga. L. 1980, p. 70, § 2, and former O.C.G.A. § 24-10-20 are included in the annotations for this Code section.

Use of word "shall" in the former statute indicated that the subpoena must be issued by the clerk, signed by the clerk, and under the seal of the court; the word "shall" was in its ordinary signification a word of command. State v. Brantley, 147 Ga. App. 569, 249 S.E.2d 365 (1978) (decided under former Code 1933, § 38-1501).

Signature by clerk.

- Subpoena commanding the presence of a person in court as a witness is a judicial writ, and to be valid must, when there was a clerk, be signed and issued by that officer. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900) (decided under former Civil Code 1895, § 5260).

Signature by attorney.

- Subpoena to which the attorney for a defendant has signed the name of the clerk, under a general direction from that officer to "prepare" the subpoenas in the case, was not valid. Horton v. State, 112 Ga. 27, 37 S.E. 100 (1900) (decided under former Civil Code 1895, § 5260).

Signing and sealing were ministerial acts.

- Signing and sealing of a subpoena amount to nothing more than ministerial acts which add nothing of substance to the subpoena, the only purpose of which was to give notice to a witness to appear in court; a statute was regarded as directory when no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. State v. Brantley, 147 Ga. App. 569, 249 S.E.2d 365 (1978) (decided under former Code 1933, § 38-1501).

Defendant's responsibility to ensure presence of witnesses.

- When defendant elected to represent oneself it was the defendant's responsibility, not the trial court's, to ensure the presence of witnesses by the issuance of subpoenas. Kegler v. State, 267 Ga. 147, 475 S.E.2d 593 (1996) (decided under former O.C.G.A. § 24-10-20).

As the defendant, who was proceeding pro se during a criminal trial, failed to request issuance of subpoenas pursuant to former O.C.G.A. §§ 24-10-20(b) and24-10-21, there was no violation of the right to compulsory process. Sheppard v. State, 297 Ga. App. 806, 678 S.E.2d 509 (2009), cert. denied, No. S09C1575, 2009 Ga. LEXIS 795 (Ga. 2009) (decided under former O.C.G.A. § 24-10-20).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 24-10-20 and some provisions of former O.C.G.A. § 24-10-21 are included in the annotations for this Code section.

Issuing blank subpoena to requesting party proper.

- Under former O.C.G.A. § 24-10-20, the clerk of the superior court may properly issue to a requesting party in a pending case a subpoena which was blank except as to the signature of the clerk and the seal of court. 1981 Op. Att'y Gen. No. U81-37 (decided under former O.C.G.A. § 24-10-21).

Clerks of county recorder's courts may issue in blank subpoenas to police officers to be completed by the officers and served upon witnesses in pending cases. 1983 Op. Att'y Gen. No. U83-41 (decided under former O.C.G.A. § 24-10-21).

Information required by former subsection (a) could be filled in by requesting party.

- Since subsection (b) of former O.C.G.A. § 24-10-20 authorized the clerk to issue a subpoena signed and sealed "but otherwise in blank," the information contained in subsection (a) of former § 24-10-20 could be filled in before service by the party requesting the subpoena, thus providing a witness with a subpoena complete with all information required by former § 24-10-20. 1981 Op. Att'y Gen. No. U81-37 (decided under former O.C.G.A. § 24-10-20).

If a police officer had just issued a traffic citation, there would be a pending case for purposes of subpoena issuance. 1983 Op. Att'y Gen. No. U83-41 (decided under former O.C.G.A. § 24-10-21).

RESEARCH REFERENCES

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 6, 7.

C.J.S.

- 98 C.J.S. (Rev), Witnesses, §§ 6, 26 et seq.

ALR.

- Subpoenaing unnecessary witnesses as contempt, 37 A.L.R. 1113.

Power of court to control evidence or witnesses going before grand jury, 52 A.L.R.3d 1316.

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