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If a witness refuses to appear at a small claims trial, the court can subpoena the person. The litigant can go to the sheriff's office to fill out a subpoena form, which will then be delivered to the witness's home by a sheriff, constable, or other detached party. Though the use of a sheriff or constable is convenient and reliable, it isn't necessary, and usually entails a cost. Alternatively, a friend can serve the subpoena if the friend is:

  • Over 18 years old
  • Not a witness in the case
  • Not related to the person you are serving

The server needs to

  • Tell the person being served they are giving the person a subpoena
  • Give the person the original notarized subpoena form (to be provided by the litigant to the server)
  • Give the person one of the copies of the affidavit of service (to be provided by the litigant to the server)
  • Deliver the witness fee (to be provided by the litigant to the server)

where the witness fee is "six dollars a day, and ten cents a mile for travel out and home" [1].

Serving a Subpoena Edit

  • You can find a blank subpoena form here.
  • The witness fee is $6.00 for every day the witness has to attend court plus a travel expense of 10 cents/mile. Note that you do not have to pay a witness fee if you don’t need the subpoena recipient to be present at the hearing, but you instead need documentation like pay records. If this is the case, the litigant should include a letter detailing how to send the documents ([[1]] is a sample letter).
  • Using the address and the name of the person you want to subpoena, fill out the form; include:
    • What you request
    • Who you request it from
    • What court they need to appear at
    • When they need to be there
    • The name of your case
  • Civil Rule 45 states that you need your subpoena to be notarized by any public notary (usually at your local City Hall/bank; usually notarized for free or for a few dollars).[2]
  • Make two copies of the notarized form and the affidavit of service attached to the subpoena form.

When going to court, it’s also necessary to bring the second copy of the notarized subpoena and the original affidavit of service to show that the witness was officially subpoenaed. 

Non-Compliant Witness Edit

If your subpoenaed witness doesn’t show up to a trial, you can ask the magistrate to grant you a continuance (postponing the trial for them to show up). However, you need to explain why the witness is integral to your case. Additionally, if an emergency comes up for the subpoenaed witness and they can’t make the trial date, you can also ask the magistrate for a continuance; the other party must agree however. 

Fee Waiver Edit

If you can’t pay the subpoena fees, you can ask the state to pay the fees. You would need to fill out a form, the Affidavit of Indigency, to show that you are eligible to be covered by the state for this fee.[3] This can cover both the witness fee and the service fee (though you need not pay a service fee if you have a friend serve the subpoena). 

Receiving a Subpoena Edit

  • Civil Rule 45 states that “Unless the court orders otherwise, other than for a hearing or trial, a resident of this Commonwealth shall not be required to attend an examination or produce documents, electronically stored information, or tangible things at a place more than 50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed. Other than for a hearing or trial, a nonresident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend or produce documents, electronically stored information, or tangible things only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court.”[4]
  • When producing documents or electronically stored information (Rule 45f):
    • Unless the production of original documents is required, copies are okay (including by electronic means), provided that an opportunity for verification is possible.[5]
  • You can withhold subpoenaed information under a claim that it is privileged/subject to protection as “trial-preparation material”; if so, you need to make the claim expressly and provide information that allows both parties to assess that claim (rule 45(f)(2)).[6]
  • You can also request the court for protection under 26c.[7] 
  • Failure to obey a subpoena served by the court without adequate excuse is deemed contempt of the court (45g).[8] 

References Edit

  1. https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleVI/Chapter262/Section29
  2. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp45.html
  3. https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleVI/Chapter261/Section27A
  4. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp45.html
  5. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp45.html
  6. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp45.html
  7. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp26.html
  8. http://www.mass.gov/courts/case-legal-res/rules-of-court/civil-procedure/mrcp45.html

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