Published in Criminal Law by Chris Eskew on July 13, 2017.

criminal subpoenaA criminal subpoena is an official request for production. The production requests could include documents, appearance in court, or another legal proceeding. However, it is a formal request from the court and one that you cannot simply throw away and ignore.

The court-ordered demand requires that you act in some way, such as testify, present evidence, or help on an issue with a pending criminal case.

The Origin of the Term is Enough to Compel Action

Subpoena in Latin means “under penalty.” Therefore, if you receive a subpoena, but you fail to comply, you will have criminal or civil penalties. These penalties can range from a small fine to something more severe, like jail or contempt of court charges.

The Two Main Types of Subpoenas

There are two main categories for subpoenas used in criminal cases. These include:

  1. Subpoena Ad Testificandum: This document is the court’s requirement that you testify before a judge or other legal authority, such as for an indictment.
  2. Subpoena Duces Tecum: This court request is for production, such as producing materials, documents, and tangible evidence in a pending case.

Subpoenas are not just used in criminal cases either. The court can issue them for a personal injury case, child custody or divorce case, sex offender case, and a capital offense.

Why Does the Court Use a Criminal Subpoena?

State and federal courts use subpoenas so that attorneys have a chance to gather information they need for their client’s case. Whether it is evidence to exonerate their client or the prosecution’s evidence to prove a defendant’s guilt, the statutes allow for the court to exercise its power so that each party can get the evidence they need.

A criminal lawyer uses a subpoena to obtain a witness or use testimony from a third party that can help prove his or her client’s innocence.

The range of power the court has is quite vast.

What Do Criminal Subpoenas Usually Request?

Criminal subpoenas can require a variety of items, including:

  • Requiring Physical Samples: The court might require blood tests, DNA samples, urine samples, hair samples, and other physical evidence from a person.
  • Computer Documents: The request could include downloaded material, computer files, and digital documents.
  • Reports: The court might require laboratory reports, medical reports, evidence statements, and analysis.
  • Testimony: Courts can also require that a person appears in court to testify, such as a witness in a criminal trial or an expert in a case.

Who Has the Authority to Issue the Subpoena in Criminal Cases?

The judge does not issue the subpoena. Instead, it is done so by an attorney on behalf of the court. The attorney must be authorized to practice law in that court’s jurisdiction. However, subpoenas for higher levels of government are signed by administrative judges; not lawyers.

A pro se defendant (defendant representing themselves without an attorney), can sign one but only if he or she is acting on behalf of their legal defense.

Serving the Criminal Subpoena

A lawyer requests a criminal subpoena, then completed by the court clerk. Once the clerk issues that subpoena, a notary or justice of the peace may be required. Then, it is served one of the following ways:

  • Personally delivered to the party by a court representative, employee of the attorney, or Sheriff’s Deputy.
  • Emailed to the last known email address of the person, with a receipt of acknowledgment requested to prove delivery.
  • Certified mail to the last known address.
  • Reading it aloud to the person over the phone or in person.

What Should I Do if I Have Received a Criminal Subpoena?

If you receive a subpoena, do not ignore it. While it is scary to find an official court subpoena, ignoring it is by far the worst thing you could do. A failure to respond gives the court the authority to hold you in contempt, which carries jail time and a fine.

Next, read the subpoena to see what the court is requesting. Sometimes, the request is as minor as supplying evidence or appearing in court.

The list of what is required from you is particular, and the court must ensure that these documents outline everything you must do to comply; otherwise, they could not hold you in contempt.

Next, you must contact a criminal attorney. Whether you are appearing in court to share your testimony or you are summoned to present evidence, you must protect your rights. A lawyer can review the subpoena to help determine what you must do to comply, but also argue against it if the request is unfair or puts you in a situation where you might self-incriminate.

Can You Refuse to Comply?

Certain circumstances allow for you to avoid producing documents or appearing in court, but you need an attorney to assist you with that process. You have the Fifth Amendment right against self-incrimination, and if an overly burdensome subpoena puts you at risk, your lawyer will argue against the validity of that request in court.

Contact a Criminal Defense Attorney Today

If you have a subpoena or you are facing criminal charges, let the team at Eskew Law help you with your case. Our attorneys are aggressive, and we are here to not only ensure you receive a fair trial in criminal courts, but we also protect our clients from unfair court requests.

To explore your options, schedule a consultation with one of our defense team members by calling us at 317-974-0177 or by completing an online contact form.

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Chris Eskew

Chris Eskew is the founding partner of Eskew Law. With over 15 years of experience, he focuses his practice on criminal defense, DUI defense, and family law. Chris is known for his dedication to his clients, his strong advocacy skills, and his commitment to achieving the best possible outcomes in legal matters. He is well-respected within the legal community and has earned a reputation for providing personalized and effective representation.