September 22, 2018

[UPDATED] Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena; Comments Sought

Editor’s Note: State Judicial posted a revised version of the proposed changes in October. The links below now direct readers to the updated recommendation.

The Colorado Supreme Court is requesting written public comments by any interested person on proposed changes to Crim. P. 17(h). The Honorable Judge Morris Hoffman of the Denver District Court has written a letter that summarizes the proposed revisions to the rule and outlines arguments for and against the change, which adopts the common understanding that judges have the power to issue bench warrants when witnesses fail to appear for a criminal trial.

Click here to review the changes to the rule and the red line edits.

Click here to read Judge Hoffman’s letter regarding the recommended changes.

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

  1. A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and
  2. An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

  1. That it be limited to trials, and not apply to hearings;
  2. That the arrested witness must be brought directly and immediately to court;
  3. That a bond be immediately set; and
  4. That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

Because the Committee’s recommendations were not unanimous, Judge Hoffman outlined the process by which the Committee came to their conclusions. Due to this conflict, however, it is important that comments regarding the changes be submitted to the Colorado Supreme Court for their review by Wednesday, November 30, 2011 at 5:00 pm.

An original plus eight copies of written comments concerning this rule change should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 W. Colfax Ave., Suite 800, Denver, Colorado 80202.

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  1. Regarding hearings, and assuming I’m understanding correctly, it would seem helpful to include express language in the rule stating that regular indirect contempt proceedings could be pursued against hearing witnesses who fail to appear. As the proposed language stands, it seems to leave the question open as to what to do with such witnesses. Hearings can be of huge importance to case outcomes, for example, hearings to suppress statements/evidence. If it is not clear that a sanction is available, problems in obtaining witness cooperation could more easily arise.

  2. Zachary Willis says:

    Great suggestion, Tony, and just the sort of comment that the Colorado Supreme Court is looking for as they review the proposed rule change. I hope you’ll take the time to submit your concerns to them!


  1. […] of Criminal Procedure – Failure to Obey a Subpoena. The rule change  comes after the Court requested comment last year. The new rule reads: (h) Failure to obey […]

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