So You're Subpoenaed to Come to Court; Do You Have to?

I got asked an interesting question today. In Virginia, when is a subpoena ad testificandum (a summons to come to court and testify) served too close to the trial date to be valid?

I'll admit, I thought it was either 10 or 14 days. I also thought it was a law more honored in its breach. Almost inevitably, when a trial date comes rolling around one side or the other (often both) issue a flurry of last minute subpoenas. However, it turns out my understanding was wrong. There is no time when it is too late to subpoena a person to testify in court.

If you look at the statutes, there are really only two which are pertinent in criminal cases. § 19.2-267 basically states that the civil rules for summoning people to court apply in criminal cases.  The pertinent section of the civil statutes is § 8.01-407(A). In pertinent part, it states:

The clerk shall not impose any time restrictions limiting the right to properly request a summons up to and including the date of the proceeding.
. . . .
When any subpoena is served less than five calendar days before appearance is required, the court may, after considering all of the circumstances, refuse to enforce the subpoena for lack of adequate notice.

So, whether or not someone who is served three hours before the trial starts will be punished when he goes to work instead of going to court is entirely at the discretion of the court.

That's a bad rule.

To begin with, it leaves people at the mercy of the whims of the judge. In general, I would expect judges to look seriously at the circumstances and lean heavily against punishing people who don't come to court after having been served with a last second subpoena. However, there are going to be some judges who just won't forgive the fact that a subpoenaed witness did not come to court no matter how belated service was or how dire the consequences to the witness' personal life might be.

A second thing to consider here is the fact that the later the subpoena is served the less likely this statute is to provide a safe harbor. If the witness is served 5 days before and knows the trial date is the same day as his father's funeral, the witness can go to the judge and explain his situation. If the subpoena is served at 6 p.m. the day before trial the witness does not have this opportunity. Then the witness has to make the decision entirely on his own whether to obey the subpoena or go to the funeral and later face the ire of a judge who had to delay a jury trial for lack of a subpoenaed witness.

Third, the statute is meaningless. Whether the subpoena was served three days before the trial or three hundred, the judge always has the power to refuse to enforce a subpoena. They are enforced by a judge finding someone in contempt and the judge can always decline to find someone in contempt.

Solution:

The statute needs some language added which would make this less discretionary. I would propose something along these lines:

A subpoena shall be without force unless it is served in a timely manner. In order for a subpoena to be timely served it must be served in such time that the witness has the opportunity to appear before the court on a day prior to the date on the face of the subpoena and explain why he cannot appear as subpoenaed. A subpoena served at any time later than two business days before the date on the subpoena shall always be untimely.

Virginia Theft Project: Stealing Papers - Check Theft etc.

I run into section 18.2-98 most often as a mischarge. The thief steals a box of checks and is charged with larceny under this section.  While the theft is a petit larceny, charging under this section is an error because the checks have no value on their face.

Here's the statute:

§ 18.2-98. Larceny of bank notes, checks, etc., or any book of accounts.  

If any person steal any bank note, check, or other writing or paper of value, whether the same represents money and passes as currency, or otherwise, or any book of accounts, for or concerning money or goods due or to be delivered, he shall be deemed guilty of larceny thereof, and may be charged for such larceny under § 18.2-95 or 18.2-96, and if convicted shall receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The provisions of this section shall be construed to embrace all bank notes and papers of value representing money and passing as currency, whether the same be the issue of this Commonwealth or any other state, or of the United States, or of any corporation, and shall include all other papers of value, of whatever description. In a prosecution under this section, the money due on or secured by the writing, paper or book, and remaining unsatisfied, or which in any event might be collected thereon, or the value of the property or money affected thereby, shall be deemed to be the value of the article stolen.

Broadly, this covers everything with a written value on its face which is meant to represent money. Most often, this is charged regarding checks written to individuals with the values already printed on the check. See Morton v. Commonwealth, 225 Va. 282 (1983)(pension check), Kocher v. Commonwealth, 2009 VaApp No. 0057-08-2 (U)(settlement check), and Hubbard v. Commonwealth, 1994 VaApp No. 2111-92-3 (U)(payroll checks).  However, it can also include other papers which represent a value. See Vaugn v. Commonwealth, 10 Gratt. 758 (1853)(bond paper representing a debt).

The purpose of this statute is to overcome the common law rule that bonds, checks, and their like were not things of value themselves (at least not of any more value than the paper they were written on). These items were each a "chose in action" giving the holder the right to enforce the value on its face against the guarantor. This was not viewed as a tangible property of value. The reasoning appears to be that a chose in action represents potential value, not actual value. In other words, anyone can write 5 million dollars on a check, but that does not mean that an attempt to enforce it will result in the holder collecting 5 million dollars. If all the guarantor has is $50 to his name then the actual value of the chose in action tops out at $50.  See Adams v. Commonwealth, 23 Gratt. 949 (1873) and Whalen v. Commonwealth, 90 Va. 544 (1894).  Of course, the reality is that in the overwhelming majority of cases the paper is worth the value on its face and the common law rule created significant difficulties in prosecuting the thief; hence the statute supplanting the common law rule.

The last sentence of the statute could use clarification.  Like many older statutes, this one says things in a roundabout way which attempts to cover every possibility, but actually makes things more confusing. A simple "The value of the paper shall be the amount the paper states its value to be if the paper has not been previously satisfied" would be much clearer. In any event as long as the paper is still in the wild when it is stolen the prosecutor must present proof both of the amount on the front of the paper and the fact that it had not been previously exchanged for value.

Proving of the amount on the face of the paper is usually fairly simple. The reason for stealing the check is to cash it and the bank has it (or a copy of it - generally banks aren't required to keep checks any more). All a prosecutor has to do is introduce the check. Failing that, the value can be proven through the testimony of its recipient: "My social security check was for $632.15."  It could also be proven through the testimony of the writer: "The pay check I mailed to Mr. Smith was written for $427.09."

Proving that the paper had not been previously exchanged for value has at least two common methods of proof.  The first is to have the legal holder of the paper testify that she had not cashed it in. The second is to show that the thief exchanged the paper for value. This second has some possible glitches because of the ability to cash checks at places remote from the the bank which holds the actual funds. If a check is cashed at a grocery store that store is unlikely to call and see if the check had previously cashed. However, even in this sort of case, eventually the check must go to its home bank and that would establish whether it had been previously cashed (if it has been previously cashed that would lead to different charges).