The Alabama Court of Criminal Appeals recently examined whether email service of a subpoena for a witness to appear at trial was proper.
An assistant DA emailed a former deputy with a criminal witness request and order to appear to testify at a criminal trial where the deputy had interviewed the victim. The deputy acknowledged receipt of the email but was sick on the morning of the trial and failed to appear. After being held in constructive criminal contempt, the deputy appealed, arguing that he was not properly served with the subpoena. The prosecutor argued that the deputy had acknowledged service.
The court questioned the applicability of Ala. Code 12-21-180, which governs service of subpoenas, because the subpoena was issued electronically, and was not, as the statute requires, endorsed in writing to waive proper service.
The court reversed the constructive contempt judgment, holding:
“[g]iven that the question of serving a subpoena via email is not provided for in either the procedural rules of court adopted by the Alabama Supreme Court or statutes governing subpoenas, this Court cannot say that the subpoena that formed the basis of the contempt charge was a ‘lawfully’ served subpoena.” Grandquest v. State of Alabama, CR-2022-1067 (Mar. 24, 2023).