By Mark A. Ober
“In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.” This clear-cut distinction is well-known to anyone who has ever watched the opening sequence of an episode of “Law & Order.” Of course, in real life, this distinction is not always so clear. Although law enforcement completes the bulk of every criminal investigation, it may be necessary for the state to conduct a follow-up investigation with witness interviews.
Under section 27.04, Florida Statutes, the state attorney is empowered to summon witnesses “to testify before him or her as to any violation of the law.” This statute is very broad and allows the state to conduct an investigation to determine whether criminal activity has occurred. State v. Investigation, 802 So. 2d 1141, 1144 (Fla. 2d DCA 2001). The state may exercise this power through a subpoena for the testimony of live witnesses or through the use of a subpoena duces tecum. See id. at 1143-1144; Doe v. State, 634 So. 2d 613, 615 (Fla.1994); Imparato v. Spicola, 238 So. 2d 503, 506 (Fla. 2d DCA 1970); State v. Nat'l Research Sys., Inc., 459 So. 2d 1134, 1135 (Fla. 3d DCA 1984); Op. Att'y Gen. Fla. 94-86 (1994). An assistant state attorney is authorized to administer oaths to these witnesses, § 27.04, Fla. Stat., and law enforcement may be present for a witness interview pursuant to this section. In re Getty, 427 So. 2d 380 (Fla. 4th DCA 1983). No right to counsel attaches to such an interview, See State v. Sievert, 312 So. 2d 788 (Fla. 2d DCA 1975); Gordon v. Gerstein, 189 So. 2d 873 (Fla. 1966)., although an attorney for the witness may be present if he or she does not interfere with the investigation. Creamer v. State, 447 So. 2d 978 (Fla. 1st DCA 1984). If the state has served a subpoena on a witness to testify as part of an investigation, section 914.04 may be triggered, providing the witness with immunity for statements made in response to the subpoena. Immunity would not extend to any perjured testimony provided by the witness. See State v. Mitrani, 19 So. 3d 1065, 1067 (Fla. 5th DCA 2009; Fowler v. State, 447 So. 2d 296 (Fla. 2d DCA 1984).
In my office, my attorneys conduct in-person witness interviews with victims of violent felony offenses. These witnesses receive a subpoena to appear at our Victim Assistance Program, where they are placed under oath and interviewed by an assistant state attorney about the facts of the case. Not only does this interview give us an opportunity to learn about the case and assess our witness’ ability to testify, but it also gives the witness an opportunity to ask questions about the court process and provide input about future dispositions.
To keep the citizens of Hillsborough County safe, my attorneys take the legal actions necessary to assess and build strong cases. In conjunction with the hard work done by our law enforcement partners, my investigative authority through the use of subpoena powers allows my office to pursue justice for the people of Hillsborough County.
