What Is a Subpoena?
A subpoena is a request for the production of documents or a request to appear in a court case or other legal proceeding. It is a court-ordered command that requires you to do something, such as testify or present information that may help support the facts at issue in a pending case.
The term subpoena literally means "under penalty." A person who receives a subpoena but does not comply with its terms may be subject to civil or criminal penalties, such as fines, jail time, or both.
There are two types of subpoenas. The first, subpoena ad testificandum, requires you to testify. Parties may use these subpoenas to issue a deposition subpoena or to appear in court. The second, subpoena duces tecum, requires you to produce documents, materials, or other tangible evidence. A party may request a subpoena in any matter. Parties often request subpoenas in divorce, child custody, personal injury, and sex offender cases.
What Are Subpoenas Used For?
Under state and federal civil or criminal procedural laws, subpoenas offer the requesting party a chance to obtain information to help their client's case. Criminal attorneys, for example, often use subpoenas to get witness or lay opinion testimony from a non-party in a criminal case. Such evidence may lead to someone's guilt or innocence at trial.
Similarly, civil attorneys often subpoena individuals in civil cases to obtain information that may help settle someone's claim. For example, an attorney representing a spouse in a child custody hearing might issue a subpoena to the other spouse to appear in court to determine joint custody arrangements.
Other examples of subpoenas may include requests for:
- Blood test information
- DNA samples
- Computer files and downloaded material, such as child pornography
- Insurance records
- Medical records and bills
- Income tax returns
- Photographs, graphs, & charts
- Employee records
If the subpoena requests only documents or data, you typically do not have to appear at the proceeding in person. However, a subpoena requesting your testimony typically requires you to appear in the legal proceeding.
Who May Issue a Subpoena?
In most instances, an attorney can sign and issue a subpoena on behalf of a court. If the subpoena is for a high-level government official, such as the governor or agency head, then it must be signed by an administrative law judge. Sometimes, a non-lawyer may issue a subpoena if acting on their own behalf, known as pro se representation. A government agency may also issue subpoenas in official investigations.
How a Subpoena Is Served
A subpoena is typically requested by an attorney and issued by a court clerk, a notary public, or a justice of the peace. Once a subpoena is issued, the requesting party may serve it on an individual in any of the following ways:
- Hand-delivered (also known as "personal delivery" or “personal service" method)
- E-mailed to the last known e-mail address of the individual (receipt acknowledgment requested)
- Certified mail to the last known address (return receipt requested)
- Hire a private process server
- Hearing it read to you aloud
Failing to properly serve a subpoena may harm your case. Thus, it is essential to effect proper service on the other party.
How To Respond to a Subpoena
A subpoena is part of a court's legal process. Failing to respond to a subpoena is considered contempt of court in most states.
The subpoena indicates what is being requested or who is being asked to appear. Subpoena requests for documents and other items are usually very detailed and specific. Thus, if you receive a subpoena, read the document carefully. Also, you should protect and keep any documents in your possession safe.
Lastly, you should see who requests the information and for what purpose. This will allow you to adequately prepare for any testimony at a pending court date or other court proceeding. Finally, you should check the hearing date and time to avoid potential penalties and other consequences.
A person who receives a subpoena should consider consulting with an attorney. An attorney can provide legal advice regarding the subpoena.
Civil contempt occurs when someone hinders the judicial process. For example, if you knowingly fail to produce papers or documents requested or otherwise fail to obey the terms of a subpoena, you may be in contempt.
Criminal contempt generally refers to disruptive conduct or disrespectful behavior in court. Criminal contempt, however, can also include refusal to turn over documents or other data. It is usually a punishment.
Penalties for contempt of court often include a fine, imprisonment, or both. Contempt charges may apply until the party in contempt agrees to produce the requested information or otherwise performs their legal obligation.
Can I Refuse To Produce Documents or Appear in Court?
Circumstances that allow you to avoid having to produce documents or appear in court may include the following:
- Claims that the information sought is privileged
- If you lost or no longer have the information
- The produce or appearance violates your Fifth Amendment constitutional right against self-incrimination
- The request is overly broad
- The request is unduly burdensome
An attorney or other legal representative can help you determine if there are valid legal reasons to object to a subpoena's demand. If there is a valid legal reason to dispute the issuance of a subpoena, the judge may “quash" or cancel it.
Subpoenas are formal legal documents that should be taken seriously. A person who receives a request for the production of documents or a request to appear in court should take the necessary steps to comply with the demand sought. Failure to comply with a subpoena order may result in contempt of court charges, which may ultimately lead to penalties of sanctions, imprisonment, or both.
Seek Guidance From an Attorney
If you've received a subpoena, you must follow the proper procedures to comply with its demands fully. These procedures vary by jurisdiction. Failing to comply can lead to contempt charges or harm your interests. Every situation is different, so you may benefit by seeking the counsel of an experienced litigation attorney near you.
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