By Logan Quirk
Courts will utilize all kinds of tools and methods in pursuit of discovering the truth as it relates to a particular case. Among those tools in question is the subpoena.
Even if you don’t have a job related to the legal industry, you’ve probably heard of that term before. More specifically, you’ve likely heard about people dreading it and wanting absolutely nothing to do with it, though that does not apply to all cases.
It’s important to develop a deeper understanding of this particular legal order. Doing so will help you determine if a subpoena issued to you is worth responding to or if it would be better to get out of it.
Without further ado, let’s take a closer look at the subpoena and also discuss the steps you need to take if you would rather, they not summon you to court.
What Is a Subpoena?
Let’s start by asking a simple question: What is a subpoena anyway?
The subpoena is a “formal written order” they issue to a person to get that individual to make an appearance in court. Usually, they will ask the person on the receiving end of the subpoena to provide testimony for a case. That may also sometimes involve the person in question providing documents that can serve as evidence.
If you witnessed a bike accident and took photos of the scene, they may ask you to provide those pictures when you make an appearance in court. Don’t be surprised if they request you handover any recordings you took at the scene of the accident.
Unfortunately, some people will use any method accessible to them to gain an advantage in a case. They will not hesitate to issue a fake subpoena if that means they have a greater chance of winning.
To ensure that the document you received is indeed valid, you can check for certain elements.
First off, look at the names included in the subpoena. Are they the same names of the parties that you know to be involved in the case? If so, then take that as a sign of the order’s validity.
A case number should also accompany the document you receive. You should also look at which court the subpoena came from.
Don’t forget to double-check the details on the attorney who was behind the subpoena. They should list the attorney’s name, contact number, and address in the document.
The subpoena should also indicate when they expect you to make an appearance and if you are supposed to bring any documents related to the case.
The Different Types of Subpoenas
Not everyone knows this, but there are three different types of subpoenas.
- Deposition Subpoena
- Subpoena Duces Tecum
- Witness Subpoena
They vary in terms of what they are asking of the recipient.
They issue Deposition subpoenas, as their name implies, to individuals they expect to make an appearance at an upcoming deposition. These individuals will need to answer questions from parties involved in the case. They may ask the individual to provide certain documents about the matter.
Notably, they can only use the documents and testimony they obtain from a person who received a deposition during the discovery process that takes place before the trial. They cannot use them once the hearing starts.
A subpoena duces tecum is quite similar to the one detailed previously. The main difference is they can use any documents and testimony they gather with it during the hearing.
Lastly, you have the witness subpoena. This is straightforward and if you end up receiving one, that means they will ask you to serve as a witness during a trial.
Who Can Issue the Subpoena?
The prevailing thought for many is that attorneys can only issue subpoenas with a form that comes from the court, but that is not always the case.
An attorney working for one of the parties in the case may also request assistance from an external service, and that service may be the entity that issues the written order. In situations wherein a person is representing himself/herself in court, the subpoena may come from that individual.
Also, note that certain government agencies could be behind a subpoena. Receiving a document such as that from a government agency can be unsettling and downright intimidating but remember you’re not the one on trial here.
How Is the Written Order Issued?
Courts and attorneys can utilize different delivery methods to get the written order into the hands of its intended recipient.
Probably the most conventional way of delivering a subpoena involves someone hand-delivering the document to you. They will likely ask you to provide your signature to acknowledge that you successfully received the document.
Someone may also read the contents of the subpoena aloud to you. They may also deliver the document to your home.
Now that plenty of people are regularly online, attorneys have also turned to emails to send subpoenas to their intended recipients. They may also ask you to acknowledge that you received the document if they sent it to you via email.
What Should I Do upon Receiving the Written order?
Let’s say that you received a subpoena and you have already acknowledged it, what are the next steps you need to take?
First off, it would be in your best interest to determine the validity of the subpoena – something you can do by examining if it contains the essential details they mentioned earlier.
After determining that the subpoena in your possession is indeed legitimate, you need to check when you must testify/provide evidence and where you are supposed to go.
You must pin down those details because responding too late to a subpoena can turn out to be a huge problem for you. If you think you will need more time before you can supply the information/items needed, feel free to contact the attorney responsible for the subpoena and ask for that extension.
Now, you will need to decide how to respond to the written order.
The request outlined in the subpoena may be perfectly reasonable and appearing in court on the specified date may also be something you can do. In that case, you can contact the attorney and let him/her know that you are ready to provide the items/details required from you when the time comes.
That is not always the case, though, and some people who are issued subpoenas may not be capable of providing the testimony or documents they expect from them.
Valid Reasons for Objecting to a Subpoena
There are times when serving as a witness can be harmful to you and denying the request in the subpoena is the right move. Detailed below are the valid reasons you can use if you are objecting to a subpoena.
The Details/Documents They Ask You to Provide Are “Confidential” or “Privileged”
Just because you know something, that doesn’t automatically mean that you must talk about it because of the subpoena. There are situations where the information they seek from you is “classified” or “privileged,” meaning that you cannot share it freely.
This could be the case if you work on a government project, and they don’t permit you to talk about specific matters.
You may also invoke this objection to the subpoena if you are a doctor, and you are asked to detail a client’s medical history. The subpoena cannot force you to testify.
The Details/Documents You Are Asked to Provide Would Place Too Much of a Burden on You
Witnesses should realize that the only thing a subpoena can ask of them is to share something they know or provide documents that you already have.
For example, a subpoena that requests you to craft an exhaustive report that will carefully detail a certain case, they may consider it overly burdensome. They may also see a request that asks you to collect numerous documents from different locations in the same light.
Sometimes, the request may also ask you to prepare way too many documents within an unreasonably short timeframe. You can object to that too.
By the way, if this is the reason you will cite for objecting to the subpoena, there’s a good chance they will revise a different request that they will send to you for the same case.
The Documents and Other Forms of Evidence They Requested are Destroyed
They can’t expect you to take good care of every little piece of paper in your possession. Over the years, some files in your care may start to deteriorate, and you may have thrown some of them out, not knowing they would need them in a court case someday.
It’s not outside the realm of possibility that someone destroyed certain important documents previously in your possession, or you lost them over the years. You may have taken photos of a car accident scene previously, but the device you used may have malfunctioned or gotten lost.
As long as the documents and other items requested from you were lost or destroyed prior to you receiving the subpoena, there is no issue. The evidence no longer being in your possession is a legitimate and viable reason for objecting to the request.
You Do Not Want to Incriminate Yourself
Remember, the fifth amendment of the United States’ constitution provides protection against self-incrimination. That means you are not obligated to testify yourself if doing so results in you appearing guilty.
This is going to be harder to prove, but if you believe that you may be the subject of a criminal investigation and the subpoena is going to be used to prove your liability, you can object to it. It would be a wise move on your part to secure legal assistance first before you decide to use this objection to a subpoena.
A Note About Travel Concerns
A situation may arise where you receive a subpoena to serve as a witness, but there’s an issue with the location. For instance, they may have set the trial to take place in New Jersey, but you live somewhere multiple states away. On top of that, you received the subpoena on Thursday, and they expect you to be in court by the following Monday.
Chances are that going on a long flight is not the most convenient request they have asked from you.
In a situation such as that, they may send you money to cover your travel expenses. If the issue is that you can’t take a leave from work on such short notice, then you can talk to the attorney and have that problem addressed.
What You Can Do if You Need to Get Out of a Subpoena
Assuming that you have a valid reason for objecting to the request outlined in your subpoena, you can now move forward with a formal motion to object to it. What you need to file is a Motion to Quash.
They must direct a Motion to Quash to the court where the written order came from. In it, you need to detail your reason for objecting to the subpoena, and there must be a memorandum highlighting how the law supports your motion.
The motion you’re filing must also indicate whether you want to have the terms in the subpoena altered or terminated altogether.
You should also file the motion as soon as possible if you are going to object. Acting too late, leading to you failing to show up for the trial, could end up with them holding you in contempt of court. They may order you to pay a fine or even send you to jail.
Make Getting Out of the Subpoena More Manageable
Objecting to a subpoena and subsequently getting out of your obligation to serve as a witness is possible, but you must be careful while carrying out the process. To ensure that you won’t run into any legal troubles, you must consult with an attorney.
Reach out to the Quirk Law Group if you need help with any legal matters.