My question involves criminal law for the state of: Hawaii
* Sorry this is a long post but I'm trying to provide all the relevant info in one shot.
Back in January, a prosecutor's assistant called me at my home in Washington state to tell me I was going to be flown to Hawaii in one week to testify as a state witness. I was also told that I would be expected to testify less than 48 hours after landing.
I stated that I'd need more than 48 hours to secure child care for my 18 month old son whom would be traveling with me. The prosecutor refused my request and insisted I would be flown out two days ahead of my testimony, so in order to to avoid that stress, I bought my own airfare and arrived a week ahead of time.
BUT... I had never been given a subpoena. I didn't realize at the time that... the prosecutor in Hawaii likely had no authority to demand my presence.
When I arrived to Hawaii, I asked the prosecutors when I would get to go home. They said I needed to "be available" throughout the trial; they said the trial would last 6-8 weeks. They never once asked if I had anywhere to stay, but apparently assumed that since I have family on-island that I would be staying with them (this is true, but is incredibly burdensome and unsustainable).
I was in Hawaii as per the prosecutor's demands from January-February. Shortly after they basically tricked me into coming to Hawaii, they served me with a subpoena, listing my relative's local address. My term of service was listed as being from "March 14, 2016 until released."
I got permission to travel back to the mainland for a family event in early March and was told I would have to pay my own airfare back to testify in late March. This marks the second time I paid to keep what I believed was a legal obligation. (As of March, the subpoena WAS a legitimate obligation, but not one that I should have had to pay for.)
I have been in Hawaii as demanded by the subpoena and the prosecutors since late March. I testified in August, after multiple continuances, throughout which I was told I HAD TO STAY ON-ISLAND. I was not given a single cent of witness fees until one month after I was done testifying.
The check I received was for about 8 days of service as a witness. I testified for 3 days, but I have been here for 8 months, more than 7 of which was spent simply waiting, as the prosecutors told me to do.
The moment I was done testifying, the prosecutor whispered to me, "The defense has a subpoena for you." Court was in session so I did not stop to ask for details.
Two weeks after waiting to receive the actual subpoena, I contacted the prosecutor and asked for it. She said it was lost somewhere and she'd look for it. Several more weeks of asking for my subpoena and asking when I could go home were literally ignored. At one point, the prosecutor told me she couldn't legally talk to me because the trial had started, but all I was asking for was my subpoena (not trying to discuss the case). She has managed to completely avoid me for two months. The other prosecutor has refused to speak with me since March. The victim-witness advocate has never been able to answer any of my questions.
So for two months, I've been asking for my subpoena so I can make an informed decision about going home. Meaning, if I was going to be called back by the defense in two weeks, my preference would be to remain on-island. However, if the subpoena indicated (or if counsel anticipated) a longer wait than that, I wanted to go home to WA.
Both prosecutors and both defense attorneys have absolutely ignored each phone call, email and text message from me regarding the defense subpoena. I have still never seen it after asking for more than three months.
My questions are:
1) did the prosecution have authority to demand my presence without
having served me a subpoena?
2) does the prosecution have authority to demand that I remain
on-island while refusing to pay me a per diem?
3) can the prosecutors (parties to the case) legally serve me a defense subpoena? Conversely, can the
prosecutors keep my subpoena from me?
4) can the defense impose legal process on me (a subpoena) while I am outside of my home state? (Uniform
Act to Secure Attendance of Witnesses from Without a State says something about immunity from
process, but it's for the same criminal case so I'm not sure.)
5) is there any way for a witness (with basically no rights or standing) to challenge or seek review of
subpoena procedures and witness fee determinations? (I've written the Dept of Finance and am
waiting for a response.)
6) are these acts/inactions possible violations of HI Rules of Professional Conduct 8.4 (It is professional misconduct to: (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation) and 4.4 (In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such
person)?
*Note: prosecutors did something similar to my sister from CA. They emailed her a Hawaii-issued subpoena and demanded that she be flown in two days before testifying. She asked when she could go home and asked how she was supposed to survive out here for two months. The prosecutor told her she should get a job, which she did. This was not a misunderstanding: the prosecutors went out of their way to make us believe that we had to remain on-island for months, presumably for the convenience of their office.
All in all, my husband and I have spent most of our savings on airfare and the extremely high cost of me and child living in Hawaii. A gallon of milk here is $9. The one time I complained of the financial strain, the prosecutors told me I should go check out the local food bank. I don't know why but the thought of riding on a city bus for two hours with a toddler to go beg for food when we have a home and income in Washington just made me sick.
Is this normal? I know most trials don't take 6+ months but this seems insane to me. Thanks for any insights or advice. I have spoken to two local attorneys and they are stumped.
These are all of the statutes and rules regarding witnesses and subpoenas in Hawaii that I could find:
Uniform Act to Secure Witnesses ........http://law.justia.com/codes/hawaii/2...section-836-3/
Depositions/Subpoenas .....................http://law.justia.com/codes/hawaii/2...pter624/624-27
Witnesses Generally ..........................http://law.justia.com/codes/hawaii/2...33/chapter-621
Reporting Requirements .................http://law.justia.com/codes/hawaii/2...ection-621-10/
Budgetary Procedure .....................http://law.justia.com/codes/hawaii/2...section-621-9/
Witness Fees/Criminal ...................http://law.justia.com/codes/hawaii/2.../section-621-7
Criminal Proc. Rule 17 / Subpoenas ..http://www.courts.state.hi.us/docs/c...rules/hrpp.pdf
Civil Proc. Rule 45 / Subpoenas .........http://www.courts.state.hi.us/docs/c...rules/hrcp.htm

