• I Received a Subpoena: What is a Subpoena and What Should I Do?

If you receive a subpoena, do not act too quickly. There is no need to panic and do not act on impulse. Take time to understand what the subpoena requests and then you can take the appropriate action. You will have to acknowledge receiving the subpoena, but you may not have to comply. You may want to consult an attorney to advise, you, but that is not always necessary.

Receiving a subpoena does not mean that you did anything wrong; you may simply be a witness or have information relevant to a trial. Here are some reasons that you might receive a subpoena:

  • In a case against a bank robber, a prosecutor thinks you witnessed part of the crime.
  • In a personal injury case resulting from a car crash, an attorney may think you witnessed the crash.
  • In an investigation into embezzlement, a prosecutor may think you have business records that may support his case even though you have nothing to do with the crime.
  • In an investigation into a bribery scheme, a prosecutor wants you to testify before a grand jury.
  • In a slip and fall case, an attorney may think you witnessed the slip and fall.

This article offers some help in understanding what a subpoena is and what you should do if you receive a subpoena.

What is a Subpoena?

A subpoena is a written order requiring a witness to appear in court or for an individual or organization to provide documents, records, data, physical evidence or other information to the court.

You may receive a subpoena as an individual or as a representative of an organization. The subpoena will specify the time and place you must appear or must produce the requested documents or material.

A subpoena duces tecum requires a person or organization to provide evidence, but does not require a personal appearance. A deposition subpoena requires you to testify in a deposition as part of the Discovery phase of a trial.

Failing to respond could result in contempt of court charge or even an obstruction of justice charge.  You must treat subpoenas very seriously as failing to respond could result in a fine or even jail time.

A subpoena must be duly served, meaning it must be given to you by an officer of the court or someone designed to deliver a subpoena by the court. That person is often a process server or a sheriff or other law enforcement officer.

What Should I do if I Receive a Subpoena?

You may want to retain an attorney, but you may not need to do so. Here are some questions and issues that you may want to consider.

You should first understand the nature of the subpoena. What does the subpoena require you to do? Does it want you to provide testimony or does it require you to provide certain records or documents?

Is this a criminal or a civil case? Are you involved in the case or simply someone who has information? Who is requesting you to testify or produce information?

If you are not directly in involved in the case, you may not need to consult an attorney before responding to the subpoena. Examples would include:

  • You are a witness to a car crash.
  • You are a witness to a crime such as a robbery.
  • You are a witness to a slip and fall accident.
  • You have a security tape of an accident or a crime a prosecutor or attorney wants a copy of that security tape.

In these instances, you may want to contact the attorney who issued the subpoena to understand what it is the attorney wants from you. You should verify that you possess the knowledge or information the attorney thinks you have. If you do not, the attorney may withdraw the subpoena. For example, if you did not see the car accident, the lawyer may no longer want you to testify and therefore will withdraw the subpoena.

If you are directly involved in a case or the target of an investigation, then you should consult with an attorney. You need to protect your rights. You cannot be compelled to provide incriminating testimony. If you retain an attorney, he or she may be able to negotiate immunity in exchange for your testimony or providing records.

If your appearance requires substantial travel and time, you may be compensated for your travel and time by the attorney who subpoenaed you.

Can I Avoid Responding to a Subpoena and Can I Avoid Testifying?

While you need to respond to a subpoena, that does not mean that you need to comply. There are many reasons why you may not need to comply and here are some of the most common:

Incriminating Evidence: You cannot be forced to give testimony that may incriminate you. The Fifth Amendment to the U. S. Constitution protects you from having to provide incriminating testimony.You may still need to appear as requested, but you need not answer any questions that would incriminate you.

Your testimony is not relevant: It is possible that the requesting attorney has the wrong information. For example, if you have been asked to testify about a car accident and you did not see the car accident, you may be able to avoid testifying.

The scope of the subpoena is too broad: Attorneys may for ask for more than they need in a subpoena and the judge does not review the details of the subpoena. If the subpoena requests information that is difficult or expensive to assemble, you may be able to resist the subpoena or ask for a narrower scope.

Confidential Evidence: The subpoena may ask you to reveal confidential material, such as when a prosecutor seeks the name of a source from a journalist or a corporate secret. You may be able to avoid providing that information or alter the circumstances under which you would provide it.

If you want to avoid testifying, you may want to consult an attorney. You may be able to “quash” the subpoena. To do so, you must file a motion with the court explaining why you believe you need not testify or why you need not provide the requested evidence. The judge will review the motion and issue a decision. Even if you do testify, you need not answer questions if the answers would incriminate you.

I hope this information proves helpful. If you receive a subpoena and you are in doubt or have questions, you should consult a local attorney.

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
http://nylawthoughts.com
1-800-660-1466

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney. Remember, each case has a unique fact pattern. Past results do not
guarantee future outcomes.

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