To subpoena...or not to subpoena?

October 9, 2011 10:18 AM

YANML, YANAL but you may have been in federal court before. If the US Attorney decides not to have the arresting LEO testify against you in court, are you home free? Snowflake details inside.

I was stopped for a traffic infraction and subsequently arrested in a National Park by a Park Ranger for disobeying a direct order and resisting arrest. For the purposes of this question I complied and did not disobey or resist. I was frightened at first then became angry, and readily admit I was argumentative during the stop. The entire encounter was audio recorded by the Park Ranger. There is no videotape evidence of the traffic infraction or the arrest.

I plead not guilty to the two misdemeanor charges at preliminary and am representing myself at trial. This is in federal court and is a mandatory bench trial. The charges are fines only so no public defender. I cannot afford an attorney to represent me.

I recently received discovery from the US Attorney, which included the audio recording and the police report(s), and there are factual inconsistencies in this Ranger’s report. I am confident that I can impeach the Ranger on at least two points during cross-examination; if I do I will most likely win my case.

I assumed part of discovery would include a list of witnesses for the Prosecution but I didn’t receive one, so I called the US Attorney to inquire about this. He mentioned that “he hasn’t formulated his strategy yet” and then led me to believe that he may NOT call this Ranger to testify. When pressed, he directly said that if I want to question him I may have to subpoena him! (and pay for his travel time). Let’s just say this puts my panties all in a bunch.

So, should I subpoena the Park Ranger to guarantee he’s at trial? Do I automatically win if he is not? If I am the one to call him to the stand, can I treat him as a “hostile” witness and ask leading questions (which I may have to do to get him to answer truthfully)?

I would ask these questions to an attorney but of the four that I have called, none have called me back. I need to serve the subpoena soon, so time is of the essence.

Any additional advice you have about representing yourself in federal court would be appreciated.

posted by anonymous to Law & Government (9 answers total)

This a pretty explicit request for legal advice, which no qualified attorney in his or her right mind is going to give you over the internet.

It's a long-shot, but maybe the ACLU has someone or knows someone qualified to help you?
posted by toomuchpete at 10:32 AM on October 9, 2011

You're asking some very specific questions about criminal procedure, trial practice, and the rules of evidence. Basically, you're asking about the likely outcome of a criminal trial about which we have almost none of the facts. No one can answer these questions for you without giving you legal advice, which non-lawyers are not qualified to do, and lawyers can't or won't do unless you are their client. You need to keep contacting lawyers until you find one you're able to consult with and possibly hire. This is not a question that strangers on the internet can answer for you.
posted by decathecting at 10:39 AM on October 9, 2011 [1 favorite]

You need to hire a lawyer, and not just to ask them questions about criminal procedure or the rules of evidence, which they probably won't answer, but hire them to represent you. You need to hire a lawyer.
posted by smorange at 10:40 AM on October 9, 2011 [3 favorites]

I strongly advise not giving up after failing to get in touch with four attorneys, and instead continuing to try until you find one. This question involves explicit and important questions of trial strategy and criminal procedure.

If you can't afford an attorney, have you tried contacting a local legal aid organization?
posted by J. Wilson at 10:51 AM on October 9, 2011

Look, your questions are not terribly complex. But they are terribly specific. I understand you can't hire an attorney to actually represent you in court. But you should be able to find one to pay for 30 minutes to 1 hours worth of time to answer these questions you asked.

I could give you advice on this in 15 minutes time, actually, although I can't because 1) I only have experience in state court and there's some federal procedure here that's clearly different 2) I'm not licensed in your state and 3) Giving free legal advice to someone, when they can sue you if you're wrong, is insane.

So hire a lawyer and pay them for a small segment of time. If lawyers won't call you back? Tell their secretary you'll pay up front, and you only need a bit of time.

Failing that, go find a second year law student who doesn't know enough to NOT talk to you and get legal advice from them. It won't be that great, but then again you're flying blind right now as it is.
posted by Happydaz at 11:00 AM on October 9, 2011

Look, I'll answer your general questions about federal court. (1) The prosecutor can call whomever he wants. He is never required to call the arresting officer. The prosecutor only needs to call enough witnesses to prove the elements of the crime. (2) Yes, you can call a witness and treat him as hostile. Google FRE 611. As a side note, you should probably read all the Federal Rules of Evidence and the advisory comments before going to trial.

Now to your "what should I do" question: Beats me. Do what you want! IANYL, blah blah.
posted by lockestockbarrel at 11:10 AM on October 9, 2011 [1 favorite]

I don't have any actual legal advice, but I think it's in your interest to cause the US Atty to think that the ranger is going to be put on the stand no matter what.
posted by rhizome at 12:19 PM on October 9, 2011 [1 favorite]

"I am confident that I can impeach the Ranger on at least two points during cross-examination; if I do I will most likely win my case."

You should not be confident about this. Cross examination is extraordinarily difficult, and it may not make as much difference to the judge as you think.

It's generally a bad idea to call a witness who is hostile to you.
posted by mikeand1 at 12:23 PM on October 9, 2011 [1 favorite]

IANYL.

I think Happydaz is giving you good advice. Second mikeand1 - you're too confident (1) about your ability to successfully cross the ranger and (2) the relevance of those inconsistencies to the case and therefore to the judge's decision-making. To some extent, the outcome of your case will depend on whether the judge knows this ranger and thinks he's generally credible and to some extent on whether this is a judge who tends to convict in these sort of cases.
posted by n'muakolo at 1:30 PM on October 9, 2011