If you get a subpoena, you need the experience and expertise of a subpoena lawyer. Below, we highlight the types of subpoenas and your rights and duties in responding to one.
What Are the Types of Subpoenas?
Subpoenas for Court Appearance
Subpoenas direct you to appear in court to testify. Courts, prosecutors or attorneys commonly subpoena witnesses for trials. You may also be commanded to appear and testify in non-trial proceedings such as:
*Probable cause hearings, in which the court decides if there is enough evidence to try a defendant on criminal charges
*Suppression hearings, in which a criminal defendant seeks to exclude evidence unlawfully obtained such as through an unlawful search and seizure
*Preliminary injunction hearings, in which a party asks a court to make a party perform an act or prohibit particular actions before the case is finally resolved
Typically, a subpoena for your testimony does not list the topics or questions about which you will be asked.
Subpoena Duces Tecum
With this type of subpoena, the issuing party or a court commands that you produce specified documents in court at a stated date, time and location. The documents requested can include tax returns and forms, bank statements, receipts, financial records, phone call logs, emails, social media posts and other communications.
A subpoena duces tecum covers documents in your possession as well as documents that you have the power and ability to access. Thus, you cannot resist a subpoena for documents merely because they are not in your office.
Instead, you generally must take reasonable efforts to obtain the documents from our accountants, medical provider, bank or other custodian if you can. In many cases, the prosecutor or lawyer may subpoena the custodian of records about you directly.
Aside from court trials and hearings, attorneys may subpoena you to appear and bring documents to a deposition. As a deposition witness, you answer under oath questions from the lawyer conducting the deposition and other lawyers in the case.
Civil litigants and their lawyers employ depositions as a discovery device and to preserve testimony and other evidence. Neither judges nor jurors attend depositions, and no decision on the merits of the case is rendered at the end of a deposition. However, the testimony and documents you present may form the basis of pretrial rulings or attacking your testimony at trial.
If you conduct business as a corporation or other non-human entity, the lawyers may subpoena the company. In such cases, the issuing party lists the topics for the deposition and documents that are to be produced at the hearing.
Your entity must designate you or some officer, director, manager or other person who can speak for the company. Our California subpoena lawyers can help you select a person with suitable familiarity or knowledge of the subjects.
Can I Challenge a Subpoena?
Privilege Against Self-Incrimination
You may wish to not testify out of concerns that you will make potentially incriminating statements. The constitutional right against self-incrimination might not shield you completely from appearing in court or at a deposition. However, unless a prosecutor has granted you immunity from prosecution based on your testimony, you may plead the Fifth Amendment as to specific questions or topics.
The Fifth Amendment only protects you from testimony. It generally does not prohibit subpoenas for documents that might incriminate the company or you. That said, you might have an argument that your production of a document might constitute an act of self-incrimination and that your protected from doing so.
You generally cannot be required to testify against your spouse in a civil or criminal case. The privilege applies only during the marriage, so that you can be compelled to testify against a former spouse even if the events in question occurred while you are married.
The spousal privilege does not shield you from a subpoena in criminal cases involving bigamy, crimes against a child, other spouse, relative or person living with the spouse. Also, if a third person is a victim of any crime against a child, other spouse, relative or cohabitant, the spousal privilege does not apply.
Another aspect of the spousal privilege allows one spouse to prevent another from testifying as to confidential matters during the marriage. If you’re a party in a civil or criminal case, you may have an interest in quashing a subpoena issued to your spouse for testimony or to produce documents with confidential matters. You can invoke the confidential marital communications privilege even if you divorce your spouse, so long as the communications occurred during marriage.
A California subpoena lawyer can help you quash a subpoena issued to your lawyer, pastor, priest or other member of the clergy. The attorney-client and clergy-parishioner privileges shield your communications to attorneys or your clergy. Other privileges include those involving your physicians, psychotherapists and sexual assault or domestic violence counselors.
Your communications with psychotherapists are not protected if you raise insanity or incompetency to stand trial in a criminal case. Also, courts will not quash subpoenas to your physicians or for medical records in personal injury cases, where you have placed your injuries and medical condition at issue.
What Happens If I Do Not Comply With a Subpoena?
You violate a subpoena when you do not appear, produce documents or you appear but refuse to answer proper questions. Disobedience of a valid subpoena subjects you to contempt of court. The penalties may include fines or even imprisonment. In many cases, you can remove the contempt by complying with the subpoena.
You may contest a subpoena based on a privilege or that you don’t have sufficient time to gather the documents. Ignoring the subpoena or responding to it without the advice or help of a subpoena lawyer invites upon you legal jeopardy. Contact us today if you have received a subpoena.