In what circumstances will a plaintiff be required to pay attorney's fees for failing to subpoena witnesses in a criminal case?

Nothing, in our opinion, is better calculated to discourage such enterprise than the imposition of one's adversary's attorney's fees in the event of failure. As said in Fabricant v. Superior Court, supra, 104 Cal.App.3d 905, 915, 163 Cal.Rptr. 894, "the imposition of sanctions for an [unsuccessful] attempt to exercise this right [to subpoena witnesses] might tend unduly to chill the vigor of the defense which would be undertaken in behalf of criminal defendants." Such a chilling is obviously constitutionally unacceptable.

We note also, with approval, that Code of Civil Procedure sections 1987.1 and 1987.2 have been held inapplicable to criminal cases such as this. (See Fabricant v. Superior Court, supra, 104 Cal.App.3d 905, 914-915, 163 Cal.Rptr. 894.) And in any event the operation of such statutes, and the equitable principles or inherent judicial power upon which they are based, would be transcended by the constitutional authority we have pointed out.