Grand Jury of State of N. Y., Application of

• Decision Date: 03 December 1979
• Parties: , 7 A.L.R.4th 827 Application of a GRAND JURY OF the STATE OF NEW YORK.
• Court: Appeals Court of Massachusetts

Page 686

397 N.E.2d 686

8 Mass.App.Ct. 760, 7 A.L.R.4th 827

Application of a GRAND JURY OF the STATE OF NEW YORK.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 10, 1979.

Decided Dec. 3, 1979.

Stephen A. Moore, Boston (T. Glenn Johnston, Boston, with him), for Shawmut Bank of Boston, N. A.

John D. Boyle, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, ARMSTRONG and DREBEN, JJ.

ARMSTRONG, Justice.

Pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (see 11 Uniform Laws Annot. 1 (Master ed. 1974)), which has been adopted both by New York (N.Y.Criminal Procedure Law § 640.10 (McKinney 1971)) and by Massachusetts (G.L. c. 233, §§ 13A-13D inserted by St.1937, c. 210), the district attorney of New York County of the State of New York filed an application in the Superior Court for a subpoena requiring the Shawmut Bank of Boston, N.A., to produce before a grand jury in New York City certain records of the bank relating to one or more customers and an employee. The judge overruled the various objections advanced by the bank and issued the requested subpoena. The case is before us on the bank's appeal, the hearing of which was advanced by a single justice of this court.

The most substantial of the bank's objections concerns the scope of the Uniform Act: namely, whether the Act comprehends the issuance of a subpoena duces tecum or whether, to the contrary, the authority conferred by the Act is confined to subpoenas ad testificandum. The bank bases its argument on certain words by which the Act authorizes a judge to issue a "summons", which term is defined to "include a subpoena, order or other notice requiring the appearance of a witness in any state where such process is used in lieu of a summons . . . directing the witness to attend and testify in the court (of the requesting state) . . ." (G.L. c. 233, § 13A, par. 2), and on the elaborate provisions made in the Act to compensate a witness for travel and attendance and to protect him from arrest or service of process while in transit or in the requesting State (G.L. c. 233, § 13A, par. 4, and § 13C), contrasted with the absence of any corresponding provision for defraying the expense of assembling records or protecting those records extraterritorially.

These arguments find support in a decision of the Appellate Court of Illinois, In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 (1965), which rejected an application by Massachusetts under the Uniform Act to compel a Chicago bank to produce certain records before a grand jury sitting in Boston. See also General Motors Corp. v. State, 357 So.2d 1045 (Fla.App.1978). There are, however, decisions in other jurisdictions holding that the Uniform Act does authorize subpoenas duces tecum. See In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954); Application of Washington, 10 App.Div.2d 691, 198 N.Y.S.2d 897, appeal dismissed, 8 N.Y.2d 865, 203 N.Y.S.2d 914, 168 N.E.2d 715 (1960); In re Bick, 82 Misc.2d 1043, 372 N.Y.S.2d 447 (N.Y.Supreme Ct.1975). For a Federal decision in which the same position is implicit, see United States v. Monjar, 154 F.2d 954, 956, 958-959 (1946). For a decision noting the conflict but taking no position, see Marcus v. Diulus, 242 Pa.Super. 151, 156-157, 363 A.2d 1205 (1976).

The final section of the Act directs that it should "be so interpreted and construed as to effectuate (its) general purpose to make uniform the law of the states which enact similar laws," G.L. c. 233, § 13D, but this direction is not especially helpful in view of the conflicting decisions on the point in other jurisdictions and the paucity of States which have taken a position.

The Uniform Act makes no mention of subpoenas duces tecum or of the power of a court under the Act to order the production of documents. That silence does not necessarily imply a rejection of the power. The powers to compel the testimony of a witness and to compel the production of documents are so similar in nature and so fundamental to the gathering of evidence in judicial proceedings that one is hard put to imagine a reason for permitting the former and rejecting the latter; and one suspects that a conscious intention to differentiate between testimonial and documentary evidence would have found some concrete expression in the words of the Act, rather than mere silence. It is not inconceivable that the question of how the Act would relate to the production of documents simply never occurred to the Commissioners on Uniform State Laws. The record of their deliberations can be read as confirming such a suspicion, for we find therein no reference to the production of documents, even in passing, much less as a discrete subject of discussion. See Handbooks of the National Conference of Commissioners on Uniform State Laws for the years 1915 (at 64-65, 88), 1922 (at 118, 358-361), 1923 (at 78-180), 1924 (at 678-679), 1927 (at 915-918), 1928 (at 430-433), 1929 (at 119-123, 356, 359), 1930 (at 110-113, 575-577), 1931 (at 41-69, 120-122, 417-423), 1932 (at 41), and 1936 (at 96, 100-102, 155-158, 333-338).

The cases which have discussed the question most thoroughly are the Saperstein (New Jersey) and Grothe (Illinois) cases, which, as noted above, reached opposite conclusions. The Saperstein decision relied on an earlier decision, Catty v. Brockelbank, 124 N.J.L. 360, 12 A.2d 128 (1940), involving the construction of a statute (not the Uniform Act) which provided that ". . . witnesses may be required to appear and testify . . . by process of subpoena ad testificandum. . . ." The question for decision was whether the witness might be required under the statute to produce documents. Relying on 4 Wigmore, Evidence §§ 2199 and 2200 (3rd ed. 1940), for the proposition that a subpoena to produce such documents would be only an ordinary subpoena ad testificandum "varied by the insertion of a special clause adapted to the purpose (of obtaining a document) and requiring the witness to bring with him duces tecum the desired document", the court went on to hold:

"A Subpoena ad testificandum does not lose any of its identity or its quality and become something else because there is added thereto a clause of requisition to the witness to bring in certain records in his possession pertinent to "the matters involved" without which the power of process to compel his testimony might well be valueless. Text-writers seem to take the position that the term Subpoena ad testificandum is a technical and descriptive name for the ordinary subpoena . . . and that a power to compel testimony by subpoena as a general rule connotes authority to include therein a Duces tecum requirement. . . . And it seems to me to be a sensible view. After all, the words 'sub poena' looking to the meaning, certainly have no relation whatever to process. Custom and tradition have, however, made the words synonymous with process of a certain kind. It is an erroneous view to my mind to hold that Subpoena duces tecum is something different and apart from Subpoena ad testificandum and that the latter term does not include the former." 124 N.J.L. at 363, 12 A.2d at 129.

In the Saperstein decision the New Jersey Superior Court, following the principle of Catty v. Brockelbank, interpreted the Uniform Act to include the power to compel the production of documents before courts of other States.

Catty v. Brockelbank has been widely cited and followed. For other cases holding that a general power to subpoena witnesses includes the power to subpoena documents, see In re Hawkins, 10 Terry 544, 121 A.2d 486, affd., 123 A.2d 113 (Del.1956); Marston's, Inc. v. Strand, 114 Ariz. 260, 263, 560 P.2d 778 (1977); Southwestern Bell Telephone Co. v. Miller, 2 Kan.App. 558, 583 P.2d 1042 (1978); State ex rel. Pollard v. Marion Crim. Ct., 263 Ind. 236, 329 N.E.2d 573 (1975). The principle applied in those cases seems to us to have particular relevance to Massachusetts, for our general statutory laws authorizing courts to compel the production of evidence (namely, G.L. c. 233, §§ 1-11; c. 218, § 37; c. 277, § 68) make no explicit provision for the production of papers, but only for the summoning of witnesses. It is not until the adoption of Mass.R.Civ.P. 45(b), 365 Mass. 809 (1974), and Mass.R.Crim.P. 17(a)(2), --- Mass. --- (1979), that we find specific, separate, general authorization for courts to issue subpoenas duces tecum; but the power of our courts to issue such subpoenas has never been doubted.

The decision of the Appellate Court of Illinois in In re Grothe, which as mentioned earlier, is the leading case holding that the Uniform Act does not authorize subpoenas duces tecum, does not directly controvert the reasoning of the Catty and Saperstein decisions which we have described. Rather, the Grothe case proceeds from an assumption, said to be agreed upon by the parties, that "the extent to which the application of this act can impinge upon the personal affairs and liberties of an individual requires strict construction of the (Act)." 59 Ill.App.2d at 5, 208 N.E.2d at 583. Because the Uniform Act is reasonably susceptible of either a broad construction, allowing subpoenas duces tecum, or a restrictive construction, disallowing such subpoenas, that assumption was determinative of the case. The New Jersey decision, In re Saperstein, followed the opposite general approach: it quoted with approval from an earlier New Jersey decision, Davis v. Lehigh Valley Railroad Co., 97 N.J.L. 412, 414, 117 A. 716-717 (1922): "The statute is an aid of comity between sister states, and, as its purpose is to assist in the due administration of justice, it should be liberally construed." The New Jersey approach seems to us to fit better with the view of the United States Supreme Court, which, in upholding the Uniform Act against constitutional attack, cited "the obvious policy and necessity of (the Uniform Act) to preserve harmony between States, and...