(concurring specially).
I agree that Sanders’s motion to quash should have been sustained by the district court. However, I believe Iowa Rule of Criminal Procedure 5(6) is a pre-indictment power available to the State only prior to the filing of the charges against the defendant. Rule 5(6) sets out the investigative power of the prosecuting attorney. The Rule reads:
The clerk of the district court, on written application of the prosecuting attorney and the approval of the court, shall issue subpoenas including subpoenas duces tecum for such witnesses as the prosecuting attorney may require in investigating an offense .... Such application and judicial order of approval shall be maintained by the clerk in a confidential file until a charge is filed .... The prosecuting attorney shall have ... the services of the clerk of the grand jury_The rights and responsibilities of such witnesses and any penalties for violations thereof shall be the same as a witness subpoenaed to the grand jury.
Iowa R.Crim. P. 5(6) (emphasis added).
Rule 5(6) is only available to the State as a pre-charge tool to obtain the evidence *864necessary to file an information. Once charges have been filed against a defendant, the investigatory subpoena power no longer exists, and the. State becomes bound by the rules of discovery. Rule 5(6) talks about this power in the context of an investigation, not discovery. The Rule is limited by its title, “Information.” The Rule further gives the State the same power it would have in a grand jury investigation, as well as the same rights and penalties a subpoenaed witness would have before a grand jury.
In Chidester, our court recognized: “A subpoena duces tecum issued under [R]ule 5(6) is part of a county attorney’s general investigatory power for use in lieu of a grand jury proceeding. Information obtained under this rule may not be used to perpetuate testimony for trial.” Chidester v. Needles, 353 N.W.2d 849, 852 (Iowa 1984) (emphasis added) (citations omitted). We recognized that this is not a tool that can be used in place of discovery. This investigatory power is necessary to obtain enough evidence to file a charge against a defendant, not to obtain a conviction. “Moreover, documents produced in response to a county attorney’s subpoena remain confidential unless and until a criminal charge is filed ....” Id. at 852-53 (emphasis added).
As Chidester recognized, this subpoena power is used when a grand jury is not utilized. A grand jury only sits to determine if charges are to be filed. It follows then that the investigatory subpoena power is similarly limited to pre-charge situations.
Further, I disagree with the assertion that Iowa Rule of Criminal Procedure 13(1) contemplates an investigatory subpoena being used post-indictment. Rule 13(1) merely allows the State to summon a previously subpoenaed witness. This Rule states:
When a witness subpoenaed by the prosecuting attorney pursuant to R. Cr. P. 5 is summoned by the prosecuting attorney after complaint, indictment or information, the defendant shall have the right to be present and have the opportunity to cross-examine any witnesses whose appearance before the county is required by this rule.
Iowa R.Crim. P. 13(1) (emphasis added). This Rule requires that the witness first be subpoenaed pre-indictment. After charges have been filed, the witness can later be summoned with full rights of cross-examination assured to the defendant.
A summons is different from a subpoena. To summon means: “To order to appear in court by the issuance of a summons.” American Heritage Dictionary 1212 (2d ed.1982). A summons is a “note issued to a person summoning him to report to court as a juror or witness.” Id. This is a procedure used post-indictment to require a witness to provide testimony for trial. A subpoena in the context of Rule 5(6) is not meant to perpetuate trial testimony. As such, anything obtained from it remains confidential until an information is on file. If we allow the State to use its Rule 5(6) authority post-charges, a defendant would not receive the confidentiality protection inherent in this subpoena power.
Accordingly, I would sustain Sanders’s motion to quash because the State has no Rule 5(6) subpoena power after a defendant is charged.
NEUMAN, J., joins this special concurrence.