Colorado Criminal Law – Have I Been Properly Served With This Criminal Subpoena? A Comprehensive Guide

By H. Michael Steinberg – Colorado Criminal Drug Crimes Defense Lawyer

 

Colorado Criminal Law – Have I Been Properly Served With This Criminal Subpoena? A Comprehensive Guide – Even the name subpoena is foreign to most people. Understanding the power and authority behind the subpoena and an individual’s rights as against the use and abuse of the subpoena – is the subject of this article.

[To locate the online forms for issuing Criminal Subpoenas in Colorado – please follow this LINK]

Some Basic Questions Defining The Colorado Subpoena

First – What Exactly Is A COLORADO CRIMINAL SUBPOENA?

Essentially a subpoena is a document authorizing a party to a case – criminal or civil – that requires a person or an entity to come to a specify location – such as a courtroom at a specific time and place to testify as a witness and – or to produce documents or other tangible objects in a legal proceeding. A subpoena has the power and authority of the Court itself.

Second – Who Has The Power To Issue A COLORADO CRIMINAL SUBPOENA?

A Colorado criminal subpoena may be issued by a judge, a magistrate, a court clerk, a district attorney, a public defender or privately retained defense on behalf of the defendant.

Third – What Are The Different Types Of COLORADO CRIMINAL SUBPOENAS?

Basically there are 3 different types of Colorado criminal subpoenas:

1. The “appearance only” subpoena which requires the person served to appear in court personally with nothing but themselves.

2. The “records only” subpoena, which requires the production of documents to the court but which does not require testimony in any form.

3. The combination subpoena – an “appearance and records” subpoena which requires both the physical attendance of the witness AND the production of documents or other items named in the subpoena – if the items exist. The subpoena of documents and – or things is sometimes called by the Latin term “subpoena duces tecum.”

Colorado Subpoenas In Criminal Cases – Rule 17

There is a Colorado procedural rule that governs Colorado criminal subpoenas – that rule is Colorado Rule of Criminal Procedure Rule 17. What follows is a complete reprint of the rule.

Rule 17. Subpoena.

[HMS – The right to have a court issue a subpoena is held by each side to a Colorado criminal case – equally.]

In every criminal case, the prosecuting attorneys and the defendant have the right to compel the attendance of witnesses and the production of tangible evidence by service upon them of a subpoena to appear for examination as a witness upon the trial or other hearing.

[HMS – The following section informs of the proper form a subpoena must take.]

(a) For Attendance of Witnesses – Form – Issuance. A subpoena shall be issued either by the clerk of the court in which case is filed or by one of counsel whose appearance has been entered in the particular case in which the subpoena is sought. It shall state the name of the court and the title, if any, of the proceedings, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

[HMS – Pro Se Defendants – those individuals without a lawyer – have the same right to request and have issued a valid subpoena.]

(b) Pro Se Defendants. Subpoenas shall be issued at the request of a pro se defendant, as hereinafter provided. The court or a judge thereof, in its discretion in any case involving a pro se defendant, may order at any time that a subpoena be issued only upon motion or request of a pro se defendant and upon order entered thereon. The motion or request shall be supported by an affidavit stating facts supporting the contention that the witness or the items sought to be subpoenaed are material and relevant and that the defendant cannot safely go to trial without the witness or items which are sought by subpoena. If the court is satisfied with the affidavit it shall direct that the subpoena be issued.

[HMS – This section provides the rule for the issuance of a subpoena duces tecum – for the production of documents or things such as books, photographs and the like. It also provides language addressing the tests and procedures for opposing an oppressive use of theis kind of subpoena.]

(c) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, photographs, or other objects designated therein. The subpoenaing party shall forthwith provide a copy of the subpoena to opposing counsel (or directly to the defendant if unrepresented) upon issuance.

The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents, photographs, or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, photographs, or objects or portions thereof to be inspected by the parties and their attorneys.

[HMS – This next section addresses the proper way to serve a child.]

(d) Service on a Minor. Service of a subpoena upon a parent or legal guardian who has physical care of an un-emancipated minor that contains wording commanding said parent or legal guardian to produce the un-emancipated minor for the purpose of testifying before the court shall be valid service compelling the attendance of both said parent or legal guardian and the un-emancipated minor for examination as witnesses. In addition, service of a subpoena as described in this subsection shall compel said parent or legal guardian either to make all necessary arrangements to ensure that the un-emancipated minor is available before the court to testify or to appear in court and show good cause for the un-emancipated minor’s failure to appear.

[HMS – The following rules – applicable to the service of a subpoena – are the most critical and most likely to be the rules that will arise in a criminal cases.]

(e) Service. Unless service is admitted or waived, a subpoena may be served by the sheriff, by his deputy, or by any other person who is not a party and who is not less than eighteen years of age. Service of a subpoena may be made by delivering a copy thereof to the person named.

[HMS – A Colorado criminal subpoena must either be served personally upon the target witness or the witness must “waive” personal service. Usually a sheriff’s deputy or private process server identifies the subject and then hands the target witness the subpoena. Importantly – as opposed to common myths – the person served does not have to personally take the subpoena and their refusal to do so does not mean service of the subpoena has not been perfected. The person serving the subpoena must only have a “good faith” belief that the person served is the right target witness…. such as the classic response upon identification – “hello – that’s me.”]

Service may also be made in accordance with Section 24-30-2104(3), C.R.S. (Witness Address Confidentiality law – See Below)

[HMS – The use of the mailed subpoena is most common in criminal court jurisdictions of Colorado. It appears in your mailbox just like junk mail. It often has a tear off portion – usually identified as “the waiver card” – which is addressed back to the DA. The mailing appears official and may make it seem as if you are ordered to sign it – thereby waiving your right to be personally served – and then are required to return the signed waiver card to the DA.

Nothing could be further from the truth. There is no legal requirement to waive your right to personal service. On the other hand – if you decide to sign the waiver card and return it – you are bound to obey the subpoena as it becomes – at the point you sign and mail it – a Court Order punishable by contempt of court – which includes an arrest and incarceration. (See Below.)]

Service is also valid if the person named has signed a written admission or waiver of personal service. If ordered by the court, a fee for one day’s attendance and mileage allowed by law shall be tendered to the person named if the person named resides outside the county of trial.

(f) Place of Service.

(1) In Colorado. A subpoena requiring the attendance of a witness at a hearing or trial may be served anywhere within Colorado.

(2) Witness from Another State. Service on a witness outside this state shall be made only as provided by law.

(g) For Taking Deposition – Issuance. A court order to take a deposition authorizes the issuance by the clerk of the court of subpoenas for the persons named or described in the order.

[HMS – The next section addresses the Court’s power of contempt of court and why a witness needs to be keenly aware of the decision to oppose a validly served subpoena.]

(h) Failure to Obey Subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued. Such contempt is indirect contempt within the meaning of C.R.C.P. 107.

The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

[HMS – This section addresses the failure to appear for trial – and the expiration of the validity of the subpoena]

(2) Trial Witness – Bench Warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant.

Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury; or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

Serving Alleged Victims Of Domestic Violence In Colorado – Address Confidentiality Program

[HMS – Referenced above in Rule 17 is this statute – 24-30-2104 which permits the State of Colorado to keep confidential the alleged victims of certain Colorado charges – such as domestic violence and sexual assault – it is self explanatory.]

§ 24-30-2104. Address confidentiality program – creation – substitute address – uses – service by mail – application assistance centers.

(1) There is hereby created the address confidentiality program in the department to protect the confidentiality of the actual address of a relocated victim of domestic violence, a sexual offense, or stalking and to prevent the victim’s assailants or potential assailants from finding the victim through public records. Under the program, the executive director or his or her designee shall:

(a) Designate a substitute address for a program participant that shall be used by state and local government agencies as set forth in this part 21; and

(b) Receive mail sent to a program participant at a substitute address and forward the mail to the participant as set forth in subsection (2) of this section.

(2) The executive director or his or her designee shall receive first-class, certified, or registered mail on behalf of a program participant and forward the mail to the participant for no charge. The executive director or his or her designee may arrange to receive and forward other classes or kinds of mail at the participant’s expense. Neither the executive director nor his or her designee shall be required to track or otherwise maintain records of any mail received on behalf of a participant unless the mail is certified or registered mail.

(3) (a) Notwithstanding any provision of law to the contrary, a program participant may be served by registered mail or by certified mail, return receipt requested, addressed to the participant at his or her substitute address with any process, notice, or demand required or permitted by law to be served on the program participant. Service is perfected under this subsection (3) at the earliest of:

(I) The date the program participant receives the process, notice, or demand; or

(II) Five days after the date shown on the return receipt if signed on behalf of the program participant.

(b) This subsection (3) does not prescribe the only means, or necessarily the required means, of serving a program participant in the state.

(c) Whenever the laws of the state provide a program participant a legal right to act within a prescribed period of ten days or less after the service of a notice or other paper upon the participant and the notice or paper is served upon the participant by mail pursuant to this subsection (3) or by first-class mail as otherwise authorized by law, five days shall be added to the prescribed period.

…

Understanding The Colorado Power Of Contempt Of Court For Refusing To Obey A Colorado Criminal Subpoena

Below is a plenary analysis of a Colorado Court’s contempt power. Contempt of Court is outlined and enforced by a provision in the Colorado Rules of Civil Procedure Rule 107.

There are two types of contempt provided for in Rule 107 – direct and indirect.

Direct contempt targets actions taken in the courtroom and is the result – often enough – of an angry and insulted Trial Judge.

Indirect contempt  occurs most frequently when one party seeks an order to hold the other part in contempt for a perceived violation of a Court Order.

Once contempt has been established – the “punishment” for the contempt can be either “remedial” or “punitive.” These approaches target different results.

“Punitive contempt” is intended to purely to punish the violation and can include fines or jail time (which can be up to 180 days) – or both.

While “remedial contempt” attempts to “remedy” the contempt by forcing compliance with the Court’s Order in a more productive way. A person seeking to hold another party in contempt can use one – the other – or both remedial and punitive sanctions in the same action.

What follows is the entirety of Rule 107:

Rule 107. Remedial and Punitive Sanctions for Contempt.

(a) Definitions. (1) Contempt: Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.

(2) Direct Contempt: Contempt that the court has seen or heard and is so extreme that no warning is necessary or that has been repeated despite the court’s warning to desist.

(3) Indirect Contempt: Contempt that occurs out of the direct sight or hearing of the court.

(4) Punitive Sanctions for Contempt: Punishment by unconditional fine, fixed sentence of imprisonment, or both, for conduct that is found to be offensive to the authority and dignity of the court.

(5) Remedial Sanctions for Contempt: Sanctions imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.

(6) Court: For purposes of this rule, “court” means any judge, magistrate, commissioner, referee, or a master while performing official duties.

(b) Direct Contempt Proceedings. When a direct contempt is committed, it may be punished summarily. In such case an order shall be made on the record or in writing reciting the facts constituting the contempt, including a description of the person’s conduct, a finding that the conduct was so extreme that no warning was necessary or the person’s conduct was repeated after the court’s warning to desist, and a finding that the conduct is offensive to the authority and dignity of the court. Prior to the imposition of sanctions, the person shall have the right to make a statement in mitigation.

(c) Indirect Contempt Proceedings. When it appears to the court by motion supported by affidavit that indirect contempt has been committed, the court may ex parte order a citation to issue to the person so charged to appear and show cause at a date, time and place designated why the person should not be punished. The citation and a copy of the motion, affidavit and order shall be served directly upon such person at least 21 days before the time designated for the person to appear.

If such person fails to appear at the time so designated, and it is evident to the court that the person was properly served with copies of the motion, affidavit, order, and citation, a warrant for the person’s arrest may issue to the sheriff. The warrant shall fix the date, time and place for the production of the person in court. The court shall state on the warrant the amount and kind of bond required. The person shall be discharged upon delivery to and approval by the sheriff or clerk of the bond directing the person to appear at the date, time and place designated in the warrant, and at any time to which the hearing may be continued, or pay the sum specified.

If the person fails to appear at the time designated in the warrant, or at any time to which the hearing may be continued, the bond may be forfeited upon proper notice of hearing to the surety, if any, and to the extent of the damages suffered because of the contempt, the bond may be paid to the aggrieved party. If the person fails to make bond, the sheriff shall keep the person in custody subject to the order of the court.

(d) Trial and Punishment. (1) Punitive Sanctions. In an indirect contempt proceeding where punitive sanctions may be imposed, the court may appoint special counsel to prosecute the contempt action. If the judge initiates the contempt proceedings, the person shall be advised of the right to have the action heard by another judge. At the first appearance, the person shall be advised of the right to be represented by an attorney and, if indigent and if a jail sentence is contemplated, the court will appoint counsel.

The maximum jail sentence shall not exceed six months unless the person has been advised of the right to a jury trial. The person shall also be advised of the right to plead either guilty or not guilty to the charges, the presumption of innocence, the right to require proof of the charge beyond a reasonable doubt, the right to present witnesses and evidence, the right to cross-examine all adverse witnesses, the right to have subpoenas issued to compel attendance of witnesses at trial, the right to remain silent, the right to testify at trial, and the right to appeal any adverse decision.

The court may impose a fine or imprisonment or both if the court expressly finds that the person’s conduct was offensive to the authority and dignity of the court. The person shall have the right to make a statement in mitigation prior to the imposition of sentence.

(2) Remedial Sanctions. In a contempt proceeding where remedial sanctions may be imposed, the court shall hear and consider the evidence for and against the person charged and it may find the person in contempt and order sanctions. The court shall enter an order in writing or on the record describing the means by which the person may purge the contempt and the sanctions that will be in effect until the contempt is purged. In all cases of indirect contempt where remedial sanctions are sought, the nature of the sanctions and remedies that may be imposed shall be described in the motion or citation.

Costs and reasonable attorney’s fees in connection with the contempt proceeding may be assessed in the discretion of the court. If the contempt consists of the failure to perform an act in the power of the person to perform and the court finds the person has the present ability to perform the act so ordered, the person may be fined or imprisoned until its performance.

(e) Limitations. The court shall not suspend any part of a punitive sanction based upon the performance or non-performance of any future acts. The court may reconsider any punitive sanction. Probation shall not be permitted as a condition of any punitive sanction. Remedial and punitive sanctions may be combined by the court, provided appropriate procedures are followed relative to each type of sanction and findings are made to support the adjudication of both types of sanctions.

(f) Appeal. For the purposes of appeal, an order deciding the issue of contempt and sanctions shall be final.

Some Final Thoughts Regarding Colorado Criminal Subpoenas

No requirement to answer the knock on your door: You have the right to refuse to answer your door for any reason. There is an important warning here – if you do answer your door – say to the police or a sheriff – you cannot mislead, lie or intentionally obstruct the police. You have the right to remain silent – but if you decide to have a dialogue with law enforcement (a bad idea most of the time) do not lie to the police.

The Right To Avoid Self Incrimination – The Fifth Amendment

There are times when testifying in a case may result in placing yourself in jeopardy of prosecution for admitting to the commission of crimes. If you feel that is the case – your duty to yourself is to make it clear to the Judge that you believe your testimony will or may incriminate you. The Judge will then appoint a lawyer to advise you of your rights and to help you make the decision as to whether you want to fight the subpoena on that basis.

Colorado Criminal Law – Have I Been Properly Served With This Criminal Subpoena? A Comprehensive Guide

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Have I Been Properly Served With This Criminal Subpoena? A Comprehensive Guide.