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Introduction – One of the first contacts you may have with our criminal or civil justice system is to receive a subpoena. This article addresses your rights and responsibilities as regards subpoenas.
A subpoena is an order to attend court. It can be issued by a judge or court clerk, a prosecutor or defense attorney, or an investigator for the DA.
A subpoena duces tecum orders you to attend court and also to bring documents or other evidence.
Read the subpoena carefully; you might not have to attend court if it says you may send the documents directly to the court, in a sealed envelope, along with a declaration under penalty of perjury describing how the records were prepared.
Again, the instructions will be on the subpoena, so read them carefully. DO NOT send the documents directly to the person who issued the subpoena; they should be sent to the court, at the address specified on the subpoena.
Subpoenas are most commonly handed to the person being served. Service can be made by a police officer, a defense investigator, or almost any other adult who is not a party to the case. If the witness is a minor, the subpoena is to be served on the child’s parent or guardian.
Contact the person who issued the subpoena. They may agree to place you on standby, where you give them telephone numbers where you can be reached and agree to be in court within a certain period of time after they call you. If you make this kind of arrangement and fail to show up when notified, it is just as if you failed to obey the subpoena altogether.
If you don’t go to court as ordered, the judge may issue an arrest warrant that lets a police officer take you into custody. You can then be held in jail until the case is returned to court. If you refuse to answer questions, the judge may also hold you in contempt and remand you into custody until you agree to testify.
Sometimes a person’s testimony may get them in trouble. For instance, it might reveal that you had committed a crime or that you violated terms of probation. If that happens, you should inform the judge that you feel your testimony may incriminate you, and that you want to have a lawyer appointed before you start asking questions.
Even if the prosecutor or defense attorney who issued the subpoena doesn’t plan to ask any incriminating questions, the other side will have an opportunity to cross examine you and will try to impeach your testimony with information that tends to show you are untruthful, biased or motivated to give false testimony.
A witness has no duty to voluntarily meet or speak with a prosecutor or defense attorney who is preparing for trial. The witness’s legal obligation, if served with a subpoena, is to testify. A witness may speak with a police officer or lawyer, but is not required to do so.
But neither prosecutor nor defense attorney should advise a witness to not speak with the opposing attorney. Once a witness is represented, the other attorneys cannot not directly communicate with the witness.
Additionally, neither defense counsel nor prosecutor should give legal advice to a witness who has a separate legal interest at variance with the parties. While an attorney can speak with an unrepresented witness.
The entity with the authority to initiate or to end a criminal case is the district attorney’s office. . In representing a complainant, it may be important to explain this, as the person may feel that, being the injured party, he or she can decide whether to pursue or drop a charge. The complaining witness may have personal reasons for not pursuing the charge — the witness’s own background may be revealed, or the person may experience embarrassment or worse from cross-examination.
While the prosecutor determines whether to pursue a case, there are instances where the police or prosecution mislead a complaining witness. The witness’s attorney may need to act as a buffer, dealing with the prosecutor on an equal footing, to resist any overreaching or threats.
A witness who is served with a subpoena has an obligation to answer that subpoena. However, the witness’s attorney may need to determine whether service was properly effectuated. With a grand jury subpoena, for example, client’s counsel should determine whether the subpoena is returnable while the grand jury was in session.
An attorney clearly may not advise a witness to hide or leave the jurisdiction to be unavailable as a witness.
A person receiving a subpoena may seek to quash, modify it. The prosecution may not move to quash a witness’s subpoena, but may seek a protective order.
The person may seek to avoid testifying because there is a privilege to assert – spousal, doctor – patient, and the like. However, an order is not required to compel a witness, who may have a privilege, to testify.
An expert witness cannot be compelled to testify to matters connected to his experience and judgment, but can be required to testify regarding observations.
Where a witness’s testimony may be self-incriminating, the court should consider appointing an attorney. During the witness’s testimony, the attorney might stand next to the client, counseling when it is appropriate or inappropriate to answer a question.
Advised by counsel, the witness may invoke the right against self-incrimination. However, a witness who unreasonably refuses to testify may be required to establish a factual basis for refusing, and the trial judge may direct the witness to testify.
Where the witness may be recalcitrant — i.e., not amenable to a subpoena –either prosecutor or defense counsel may bring a “material witness proceeding. The proposed material witness has the right to counsel.
The witness’s attorney may need to explain to the client about issues such as perjury and contempt. The role of a witness’s attorney should be to assess the client’s intentions, communicate the client’s legal obligations to comply, negotiate where possible, and represent the client vis-a-vis the other attorneys and judge.