1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?
2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.
Trial counsel served a subpoena upon a witness for suppression hearing by leaving a copy of it at with her daughter at their home. The witness did not appear for the hearing. The trial court noted that it could not issue a body attachment based on substitute service, and held that the subpoena was not properly served. The court of appeals affirmed and held that §805.07 and §801.11 apply to criminal cases. It did so even though §801.11 governs the service of a summons and complaint in a civil case, not service of a subpoena. Wilson argues that §885.03 controls criminal cases. See §972.11(1) (“Chapters 885 to 895 and 995 . . . . shall apply in all criminal proceedings.”) Not so long ago Justice Ziegler made the very same point in her concurrence to State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611. So there’s a good bet she voted to grant review and hopefully will side with Wilson in this case. According to Ziegler:
¶138 . . . . The State may not circumvent the criminal process by using civil subpoena statutes. The criminal law has its own subpoena statutes, which the State was required to use.
¶139 The Wisconsin criminal code specifically provides that chapter 885, Witnesses and Oral Testimony, “shall apply in all criminal proceedings.” Wis. Stat. § 972.11(1). As a result, any attorney, including the district attorney, may secure a witness to testify at a hearing. Wis. Stat. § 885.01. By virtue of Wis. Stat. §§ 885.01 and .02, an attorney, including a district attorney, may require a witness to bring documents with him or her to a scheduled hearing.
¶139 n. 3. Perhaps the argument in favor of allowing the State to use civil subpoena statutes arises out of Wis. Stat. § 972.11(1), which makes the rules of civil actions applicable to all criminal proceedings. However, this is impermissible when the “context of a section or rule manifestly requires a different construction.” Wis. Stat. § 972.11(1). A different construction is required in this case. The criminal law has its own subpoena statutes, and therefore, it does not need to rely on, nor should it rely on, civil subpoena statutes. See Wis. Stat. § 972.11(1) (stating chapter 885 shall apply to criminal proceedings); Wis. Stat. § 885.01 (providing subpoena power); Wis. Stat. § 968.135 (providing criminal investigative subpoena power).