Being served with a subpoena can be a nerve-wracking experience, especially if you have no clue about its origins. If you have never had altercations with the law, receiving a legal document requesting you to appear at a legal proceeding or to produce documents can leave you with many questions.
If you find yourself at the receiving end of a subpoena, seek appropriate legal guidance to avoid any legal repercussions. A reliable counsel will look into the details of the subpoena and explain your options going forward while ensuring your rights remain protected throughout the process.
What is a Subpoena?
A subpoena is a legally binding order directing an individual or entity to appear before an official proceeding to testify as a witness and/or produce evidence in the form of documents or other tangible objects in a legal proceeding. A subpoena is usually served in person, but in some cases, it may be served through certified mail or email.
All subpoenas must contain the following details:
- The date, location, and time the person must appear.
- The response date.
- The name and address of the court or office where the subpoena originated.
- The case number in a court subpoena (if one has been assigned).
- The action required of the individual. If the recipient is being ordered to produce documents, the subpoena will state the documents to be produced.
Subpoenas are time-sensitive, and all individuals who receive subpoenas must obey them. Otherwise, the recipient may face court imposed consequences. Failure to comply with a subpoena may result in the following:
- A court order compelling compliance with the subpoena.
- An order to show cause why the recipient should not be held in contempt of court.
- A contempt of court conviction.
That said, compliance is not the only way to respond to a subpoena (a topic we will cover in detail later on in the article.)
Who Can Issue a Subpoena, and Who Can Receive Them?
A criminal subpoena may be issued by a grand jury at the request of a prosecuting attorney or in some instances by a prosecutor or investigative agency. A subpoena may be served by law enforcement personnel, attorneys, a service hired by an attorney, a self-represented individual, and government agencies conducting their own proceedings and investigations, whether administrative, civil, or criminal. All servers must be at least 18 years old at the time of service.
If you were subpoenaed to testify in court, at a trial, one of the attorneys involved in a case believes that you may have critical evidence or documents that will help support his or her case. You may be an eyewitness, be aware of information that can authenticate or undermine other evidence, or have new information relevant to the case.
The Importance of a Subpoena in a Criminal Trial
In a criminal case the prosecution must present witnesses against the defendant to prove that the latter committed a crime. Under the Sixth Amendment to the Constitution, individuals within the United States have a right to confront their accusers in criminal cases. A defendant in a criminal case, usually through a defense attorney, can cross-examine the witnesses called to testify by the prosecution. This requires live testimonies, making witnesses a pivotal component in proving cases.
This is why subpoenas are considered indispensable in the criminal justice system. This document serves as a mechanism to secure the attendance of witnesses or evidence in court so that the prosecution can prove criminal charges against defendants. Similarly, defense issued subpoenas allow for the introduction of testimony or evidence to defeat the prosecution’s allegations of criminal wrongdoing
The Different Types of Subpoenas
There are two types of subpoenas, all of which may be issued in criminal, civil, or administrative proceedings:
Subpoena Ad Testificandum: Orders a person to appear in an official proceeding on a specific date and time to testify as a witness, often in a trial. This type of subpoena is also common in civil, administrative, grand jury, and other investigative proceedings. A subpoena ad testificandum commonly is used to compel deposition testimony in civil lawsuits.
Subpoena Duces Tecum: Translates to “subpoena for production of evidence.” This order requires the individual subpoenaed to produce documents or other records under his or her control. Oftentimes, you may mail or scan the documents and then send them via email to achieve compliance without an in-person appearance. You may also deliver them in person before the date indicated in your subpoena if you arrange it with the requesting party.
Potential Reasons to Quash a Subpoena
Everyone is mandated by law to obey a subpoena, yet, there may be ways to avoid or delay compliance. The subpoena may require people and companies to share sensitive information, which could be bad for business. Naturally, some would want to know which legal arguments they could present to prevent these records from being revealed.
Being served with a subpoena to appear and testify before a grand jury or as a witness to produce evidence can be intimidating, especially if you have not encountered it before. However, the cost of non-compliance can be expensive and/or unpleasant. Nevertheless, there are certain cases when a person may seek to “quash” a subpoena.
Failure to follow the federal rules of service: A copy of the subpoena must be served on the recipient in such a way that he or she is likely to receive it. The federal rules for service will vary depending on the type of subpoena issued, but failure to comply may allow the summoned individual to avoid testifying. This must be done through a motion, which legal counsel draft and file for you.
Scheduling conflicts: Sometimes, your appearance date may coincide with a prior commitment. In such a case, it may be possible to reschedule. To do this, you must contact the issuing party and inform them about the conflict so that they can request a different court date. However, this may not always be possible, especially if the subpoena is for trial testimony.
Attorney-client privilege and privilege against self-incrimination: These arguments may not fully quash a subpoena but will limit the information you will be asked to share. The first refers to communication between an attorney and his or her client made in confidence, and any information shared during those communications must be kept confidential. On the other hand, the privilege against self-incrimination applies when the witness called to testify may be asked to reveal information that could incriminate him or her if he or she provides it. This is usually seen in criminal cases where accomplices are testifying against each other.
Jurisdiction issue: When a court has jurisdiction, it means that it has the power and authority to decide a case. This legal concept can affect your subpoena in two ways. First, the court that issued the subpoena may not have jurisdiction over the case’s subject matter, so it cannot issue subpoenas in the case. Second, the court may not have jurisdiction over the recipient of the subpoena for various reasons.
Lack of specificity: Subpoenas duces tecum must specify the information being sought through the court order. This means the recipient must understand what is needed from him or her. If such a subpoena is insufficiently specific, a person can challenge it with the help of an attorney. This will probably require a hearing.
Undue burden: This argument is often used to reject subpoenas requesting documents because the subpoena duces tecum may require the individual to produce an exceedingly large volume of documents within a short amount of time.
What to Do When Served a Subpoena
In the event that you or your company receive a subpoena, here are a few things to keep in mind:
1. Do not initiate conversations with the person who served you. Accept the document and end the encounter with the server.
2. Do not ignore the subpoena. In most cases, if you do not object to the order within seven to 14 days of receipt of the subpoena, you forever waive your right to oppose any or all portions of the subpoena. That is why it is essential to get in touch with a lawyer right away once you have received service of the subpoena.
3. Prepare to respond to the subpoena. Your response should both adhere to court rules and preserve your rights. An improper response or failure to respond can have dire consequences. Ignoring a subpoena is punishable as contempt. Sanctions for failure to comply with a subpoena may include fines or even imprisonment (although extremely unlikely).
4. Do not speak to anyone about the subpoena or the underlying investigation or lawsuit. All communication about the matter should be with your attorney only.
5. Do not destroy or throw away documents relating to the subpoena. You are obligated to keep the documents and the information called for by the subpoena to avoid court sanctions. For example, suppose you are requested to provide information about company communication. In that case, you can contact your IT department and ask the person in charge to turn off the auto-delete rules on your email account. Destroying or failing to provide subpoenaed documents may result in sanction including being criminally charged with obstruction of justice.
6. Object to the subpoena if you have a valid reason to do so. If the subpoena for records is asking for information that is confidential, sensitive, or proprietary (i.e., business strategies, private customer information, or trade secrets), your lawyer may elect to quash the issuance of a subpoena to protect your confidential data.
7. Review documents and testimony before producing. Submit all documents anticipated to be responsive to a subpoena duces tecum to an attorney for review before production. Some may be privileged or non-responsive. An attorney can make that determination for you. If subpoenaed to testify, you may wish to review your prospective testimony with an attorney.
Why You Need an Experienced Defense Attorney
If you wish to contest a subpoena, you must consult a knowledgeable defense lawyer who can evaluate your circumstances and advise you on how to proceed.
Mr. Richard A. Serafini of the Serafini Law Office has been practicing law for 40 years. With vast experience in both criminal and civil litigation, he is just the attorney you need to guide you in submitting a compliant response to the subpoena.
Mr. Serafini will help you respond appropriately to the subpoena while ensuring your rights and private information are protected to the fullest extent possible.
Our law firm currently offers a range of legal services to the following cities and states: Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Florida, Pennsylvania, and New York.
Contact us at (754) 223-4718 for a free consultation.