Meaning and Types of Subpoena
A subpoena (pronounced “suh-pee-nuh”) is a request for the production of documents, or a request to appear in court or other legal proceedings. It is a court-ordered command that essentially requires you to do something, such as testify or present information that may help support the facts that are 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.
Types of Subpoena
There are two types of subpoenas. They are:
- Subpoena ad testificandum (pronounced “ad test- te-fi-kan-dum”), requires you to testify before a court or other legal authority. The second is called,
- Subpoena duces tecum (pronounced “doo-seez tee-kum”), requires you to produce documents, materials, or other tangible evidence. A subpoena may be requested in any kind of matter, but the most common requests are from 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 attorneys a chance to obtain information to help prove or disprove their client’s case. Criminal attorneys, for example, often use subpoenas to obtain “witness” or lay opinion testimony from a third party that may lead to someone’s guilt or innocence at trial. Similarly, civil attorneys often subpoena individuals 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 in a child pornography case, for example);
- Medical bills & insurance records;
- Income tax returns;
- Photographs, graphs, & charts; and
- Employee records.
Who May Issue a Subpoena?
In most instances, a subpoena can be issued and signed by an attorney on behalf of a court in which the attorney is authorized to practice law. 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. In some cases, a non-lawyer may issue a subpoena if acting on his or her own behalf (known as pro se representation).
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, it may be served on an individual in any of the following ways:
- Hand-delivered (also known as “personal delivery” 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); or
- Hearing it read to you aloud.
How to Respond to a Subpoena
The first thing you should do if you receive a subpoena is not to ignore it. A subpoena is part of a court’s legal process and failure to respond to a subpoena is considered contempt of court in most states.
The next step is to read through the subpoena to determine what is being requested and/or who is being asked to appear. Subpoena requests for documents and other items are usually very detailed and specific. Also, you should make sure to protect and keep any documents in your possession safe.
Lastly, you should look to see who is requesting the information and for what purpose, so you can adequately prepare for any testimony you are required to give at a trial or other proceeding. Finally, you should check the hearing date and time to avoid potential penalties and other consequences.
A person who receives a subpoena should otherwise consult with an attorney, who may assist you if you need more time to gather the information or have any questions about what is being asked of you.
Because a subpoena is a court-ordered command, a person who fails to obey it is subject to civil or criminal contempt of court charges. Civil contempt occurs when you knowingly fail to produce papers or documents requested, or otherwise fail to obey the terms of a subpoena and, thereby, hinder the judicial process. Criminal contempt, which is usually intended as punishment, generally refers to disruptive conduct or disrespectful behavior at court. Criminal contempt can also include refusal to turn over documents or other data.
Penalties for contempt of court often include payment of a fine, imprisonment, or both. Contempt charges may apply until the party in contempt agrees to produce the requested information or otherwise perform his or her legal obligation.
Can I Refuse to Produce Documents or Appear in Court?
Circumstances that allow you to potentially avoid having to produce documents or appear in court may include claims that the information sought is “privileged”, lost, or violates your Fifth Amendment constitutional right against self-incrimination, and that the requests are overbroad or unduly burdensome. An attorney or other legal representatives can help you figure out if there are valid legal reasons to object to a subpoena’s demand.
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 fines, imprisonment, or both.
Have You Been Subpoenaed? Seek Guidance From an Attorney
If you’ve received a subpoena for documents, financial records, photographs, or anything else deemed relevant to a court case, you must follow the proper procedures to fully comply with its demands. These procedures vary by jurisdiction and a failure to comply can lead to contempt charges or other harm to your interests. Every situation is different, which is why you would benefit substantially from seeking the counsel of an experienced litigation attorney near you.