Occasionally FBI agents, or other federal agents, are subpoenaed to appear to testify in local proceedings or even in federal proceedings to which the United States is not a party. Quite often the subpoena is issued on behalf of a state defendant in a criminal case seeking to obtain the results of an FBI investigation into alleged police mistreatment of the defendant. This can also arise with regard to other federal agents in prosecutions relating to human trafficking.

The Department of Justice’s policy is generally to resist such a subpoena except where the agent can give eyewitness fact testimony like any other witness. See 28 C.F.R. Part 16 and §§ 1-6.100 et seq. of the JM. There may be unique and limited circumstances in which the FBI (or other federal agency), the Criminal Section of the Civil Rights Division, and the United States Attorney’s Office all agree that testimony of an agent is in the interest of justice. In such a case, the agent may testify. In all cases involving requests for testimony in cases related to civil rights investigations or prosecutions, it is expected that the Civil Rights Division, the relevant United States Attorney’s Office, and the FBI will consult. In no event should any component represent to a court or defense counsel that an agent will provide testimony without consultation with the other components.

When subpoenas are issued to Department of Justice attorneys or agents for either testimony or records in any civil rights matter, the Assistant Attorney General for the Civil Rights Division has ultimate authority to determine the Department of Justice’s position regarding compliance with the subpoena. Any motions to quash or related proceedings should be handled by the United States Attorney’s Office in consultation with the Civil Rights Division. In cases involving a request for records authored by the FBI, the FBI must be consulted before decisions are made about whether the records are turned over.

[updated March 2018]