January 3, 2018
Brooklyn DA’s Improper Use of Subpoenas Called COERCIVE by Judge
A decision by Brooklyn Criminal Court Judge Donald Leo was handed down today in Kings County Criminal Court, declaring the Brooklyn District Attorney’s improper use of witness Subpoenas coercive.
The decision reaffirms that a witness Subpoena—unlike a Subpoena for documents and records—can only be used to compel testimony from a witness and require them to appear in court on a day where testimony can actually be taken, as per Criminal Procedure Law §610.10. It cannot be used to force a conversation, sign a corroborating statement, or for any investigatory purposes.
The Law Office of Ali Najmi represented a potential witness who did not want to sign a corroborating affidavit or participate in an investigation and prosecution. The Brooklyn District Attorney’s Office became frustrated with our client and sent a letter demanding the witness appear in their office and attached it to a Subpoena requiring their presence in court. The Subpoena included a date in court in which it was impossible for any testimony to be taken by any witnesses and was a control date. The DA’s use of a letter with the Subpoena gave the appearance that the witness’s non-cooperation would be considered contempt of court and the commission of a crime. Judge Leo declared the practice unlawful and quashed the Subpoena.
Upon a Motion to Quash the Subpoena filed by attorney Ali Najmi, Judge Leo declared:
“[the motion] argues that the People’s use of a letter requesting [witness] to come to the Kings County District Attorney’s Office with a Subpoena attached to it was to employ the color of Subpoena to coerce [the witness] to come to the office and be interviewed. The court agrees.”
Judge Donald Leo’s decision can be read in its entirety here: https://www.scribd.com/document/368346069/Witness-Subpoena-Decision
If you have received a Subpoena from law enforcement call attorney Ali Najmi today.