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State v. Biechele10/21/2005
DECISION
Before this Court is a request by Defendant Daniel Biechele ("Defendant") for pretrial subpoenas pursuant to R.I. Super. R. Crim. P. 17(c). The Defendant seeks to compel the Rhode Island Department of the Attorney General, the Rhode Island State Fire Marshal, and each of the thirty-nine cities and towns in Rhode Island to produce all records of pyrotechnic permits issued pursuant to R.I. Gen. Laws 1956 § 11-13-1, dating between January 1, 1980 and February 20, 2003. The State objects to the motion on the grounds that it is irrelevant and over burdensome. The Defendant and the State submitted memoranda supporting their position and argued before the Court on October 14, 2005.
RULE 17(C) SUBPOENAS
Rule 17(c) was not designed as a means of discovery, but rather a tool to review specific, identifiable evidence before trial so as to expedite the trial process. State v. DiPrete, 698 A.2d 223, 226 (R.I. 1997). Rule 17(c) provides
"Subpoena.-* * *
(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."
Discretion to allow a pretrial subpoena belongs to the trial court, as the inquiry is often fact-intensive. Diprete, 698 A.2d at 226. However, the Rhode Island Supreme Court has adopted a specific standard that the moving party must meet before such a request is granted. In order to require the production, the moving party must show
"(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that failure to obtain such inspection may tend unreasonably to delay trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'" Diprete, 698 A.2d at 225 (quoting United States v. Nixon, 418 U.S. 698, 699-702 (1974)).
The initial hurdle of relevancy is shown when there is a "sufficient likelihood" that the documents requested will be relevant to the offense charged. Nixon, 418 at 700. "Mere speculation as to the content of documents is hardly a showing of relevance." United States v. Concemi, 957 F.2d 942, 949 (1st Cir. 1992).
DEFENDANT'S ARGUMENT
The pertinent part of the Defendant's argument states: " irst, these materials are relevant to whether Mr. Biechele's actions were such a departure from the standard of care in the industry as to constitute gross/criminal negligence. . Second the materials bear on the issue of duty: the nature and quality of Mr. Biechele's obligation (if any) to obtain a permit for the use of pyrotechnics. The existence or absence of such duty may be found in the practical application of the law governing the permitting of pyrotechnics, as well as its letter." (Motion to Issue Subpoenae at 1-2.) The defense anticipates the request will uncover few, if any, permits issued pursuant to § 11-13-1. Allegedly, this result will support both the contention that no duty to procure a permit exists under
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