The Sixth Amendment to the United States Constitution states, among other things, that a criminal defendant has the right to something known as ‘compulsory process.’ Simply put, this means that a criminal defendant has the right to subpoena witnesses or information to assist with his or her defense. The government or the prosecutor also has the right to call witnesses or information in cases by means of a subpoena for the prosecution of the defendant.
A subpoena is simply a written command to a witness to appear in court or for an individual or entity to produce information, documents, or items subject to the matter before the court. Subpoenas are not only issued to require people to appear in court, but a subpoena can also be issued and served to require a witness to produce documentation or physical evidence that has a bearing on the case for which he or she has been subpoenaed.
This written command is a court order, and therefore, it is punishable by law for contempt of court and sometimes even obstruction of justice if a witness is duly served process and does not report to court or provide the information or items requested after a subpoena has been issued.
Served process’ means that an official either of or designated by the court, often a deputy or law enforcement officer or process server, physically locates the witness, confirms identity and then serves the subpoena.
When the witness receives the subpoena, it will clearly indicate the time and place the witness’s testimony is to occur or when and where the information or item requested by the court must be presented.
It is important to remember that a subpoena is not an indication that the receiver has done anything wrong or broken any laws. A subpoena is simply a way of summoning a person who potentially has information about a case to court, so that the information they have can be admitted as testimony for use in determining a verdict in a particular case.
Subpoena’s are most frequently used to summon a person as a witness, but as indicated above, often subpoena’s are used to request information, papers, files, items, or anything that may have a bearing on a case. With the technological age, many internet service providers have actually been issued subpoenas to turn over records of internet usage for use in court proceedings. While many web surfers believe they are entitled to a right to privacy, this right does not extend beyond the grasp of a court of law.
Anything or anyone who may have a direct bearing on a case may potentially be called as evidence or as a witness. However, there are limitations to issuing a subpoena. In order to have the judge sign a court ordered subpoena, the attorney who requests the subpoena must show enough evidence to the court to prove that issuing that subpoena is required and that the information obtained or the person called as a witness does indeed have a direct bearing on the case.
After all jurors are selected and all witnesses are sworn in, there is something in the courtroom known as ‘invoking the rule.’ When either attorney in a criminal case ‘invokes the rule’ they are referring to excluding witnesses from observing courtroom testimony until after they have been questioned as witnesses themselves. One tactic of defense attorneys is to request subpoenas of close family members or friends who may show strong emotion in the court room and thus influence the jury. Here’s how this tactic works:
The attorney requests a subpoena for the person as a witness. The person responds to the subpoena and appears in court and is sworn in as a witness. The attorney then ‘invokes the rule’ and excludes all witnesses from the courtroom, thus removing them from the view of the jury. Then, the attorney never actually calls the witness to the stand during the defense, thus effectively eliminating the person from the court room for the duration of the trial, or at least until the verdict is read.
Often, victim advocacy agencies and their advocates have received subpoenas in cases for this very reason, to remove their presence from the courtroom. Family members who may show strong emotion, victim’s family members who may show strong emotion or any person the attorney believes might adversely affect the outcome he seeks from the jury may find themselves on the receiving end of a subpoena in order to exclude them from the court room. If you have no direct bearing on the case and the court case is an open proceeding, you have a right to be present in that courtroom.
If you receive a subpoena for a case in which you may or may not be directly involved, there is no need to obtain an attorney. However, it is recommended that you determine who issued the subpoena and for which side, prosecution/plaintiff or defense, you will be testifying or producing evidence. Contact that attorney. If you are to be a witness to the defense, ask the defense attorney what information he believes you have that pertains to the case. Same for the prosecutor/plaintiff’s attorney.
If you truly believe that you have no bearing or information that pertains to the case, and if you believe that the subpoena is being issued only to exclude you from observing the court proceedings and that you truly will not be called as a witness, you can then take the steps necessary to do something known as ‘quash the subpoena.’ (note: sometimes referred to as squash.)
This is a motion that you file in court that states the reasons why you feel you should not have been called as a witness or why you feel that the ‘evidence’ you have or the information or items you are being subpoenaed to produce have to relevance to the court. Not only can you file this motion in order to remove yourself as a witness, but you can also file this motion if you feel that the subpoena is requesting items or information from you that are not relevant to the case. Many people have done this when the item requested was of a very personal nature, such as a journal or personal diary, or when the item requested would bring about an undue hardship on the person served with the subpoena if they had to produce the item.
When this motion is filed, the judge will review the information in the motion, speak to both attorneys in the case and sometimes speak to the witness who was subpoenaed before the judge makes a ruling on the motion. The judge can deny the motion, in which case the subpoena stands as issued, or he can uphold the motion, thus revoking the subpoena.
In summary, a subpoena is a court order, and it should not be ignored. There are consequences, some quite serious, including fines and possible jail time, for not properly responding to a subpoena. However, just because you have received a subpoena doesn’t necessarily mean you will have to testify in court or produce the items requested. When in doubt or if you have any questions, your best bet would always be to consult an attorney to explore your options.
Reference:
- Michelle L Devon is a freelance writer, providing write for hire services through her company, Accentuate Services. For more information or to hire Ms. Devon’s writing services, please visit her website at www.accentuateservices.com.
