People get scared if they are “served process” - usually by a civil sheriff’s deputy. And usually the document served is a subpoena: a “court order commanding the appearance of a witness, subject to penalty for noncompliance.” Black’s Law Dict., pocket ed., 1996, p. 601.
This is the Land of the Free where police cannot simply stop a person to question that person. Of course sometimes the police go a few steps further and beat or kill a person, but for an officer of the State even to stop someone without cause is against the law.
In general, if a police officer or a prosecutor wants to talk to a witness, the witness can say “take a hike.” The same is true if a lawyer for a defendant wants to talk to a witness. The exception is if the witness receives a subpoena.
In Indiana a subpoena can be issued by a lawyer (Trial Rule 45), but for a case that has been filed and - make that AND - it only can be for purpose of a deposition, a hearing, a trial, or the production of documents. Most importantly, in a criminal case that has been filed?
A prosecutor cannot issue a subpoena for the witness to come in “just to talk” or for “trial preparation” ex parte. The other party in the case has a right, under State and U.S. constitutions, to have counsel present. This is the law in Indiana. Rita v State, 674 N.E.2d 968 (Ind. 1996).
After all, if a witness fails to appear after receipt of the subpoena, the witness can be jailed for contempt. If the witness gives a statement, the statement could be used to impeach testimony of the witness at trial or the witness could be threatened with perjury or obstruction of justice.
This week the subpoenas for ex parte witness interviews, issued by a prosecutor for “trial preparation,” without service of copies of the subpoenas upon counsel for the accused, were ordered quashed after motion by defense counsel in a Brown County case.
People need to be aware of their rights. Amongst those rights is the right to tell those who hold power that any such power has limits. If the prosecutor is arrogant enough to proceed outside the law, the proper recourse is to seek protection in the Courts.