What is the test for a judge to refuse to subpoena any witnesses?

Preliminarily, we observe that we agree that the questions sought to be presented were for the judge, rather than the jury. Cox v. United States, 1947, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59; United States v. Morico, 2 Cir., 1969, 415 F.2d 138, 142; Kidd v. United States, 10 Cir., 1967, 386 F.2d 422. It may still have been error for the judge to refuse to subpoena any of the witnesses. Whether that is so depends on what it was that counsel sought to prove. His offer is a three page document containing 16 paragraphs.¹ Consideration of

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these offers will be simplified by a consideration of what type of oral testimony about local board proceedings is appropriate.

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