What is a Subpoena?
A subpoena is a formal demand for a person to testify in a court. A prosecutor or defense attorney may issue a subpoena to a person for his or her testimony or to a person for him or her to bring documents or other evidence to court.
When is a Subpoena Issued By a Criminal Court?
Our California Constitution provides that a defendant in a criminal case has the right to confront accusers and may compel witnesses to appear at a court proceeding to testify on his or her behalf. At the same time, the state has the right to require witnesses to give testimony in criminal cases. Both sides use a subpoena to compel witness appearance.
There are two different types of subpoenas. A subpoena can be issued to make a witness appear at a hearing. Another type of subpoena, called a subpoena duces tecum, can require a witness to produce documents or other evidence at a hearing.
Subpoenas For Non-Party Records
Sometimes documents are needed from a non-party. Those records can be obtained directly by either attorney if the person or entity from whom the records are being sought signs an authorization to release them to that attorney. Otherwise, that attorney may need to have a subpoena duces tecum issued and signed by a judge or other court personnel, requiring that the non-party deliver the documents to the court for the court to review them before deciding whether the attorney, usually the defense, is entitled to receive the documents.
Who Serves a Subpoena?
A subpoena can be served personally by anyone other than a defendant in the case. Although peace officers are required to serve subpoenas for the parties in a criminal matter, as a matter of course, private defense attorneys often use private process servers to ensure that subpoenas are served in a timely manner. Service of the subpoena must give the witness sufficient time to prepare and to travel to the place specified for the appearance.
A subpoena may also be served by mail or by messenger, However, when these methods are used, the service is not effective until the witness acknowledges the receipt of the subpoena either by telephone, mail, email, or in person.
Distance Issues In Subpoena Service
If the witness is located 150 miles or more away, special handling of a subpoena is required. The person seeking to compel the witness’ appearance must show the judge why this witness testimony is required. This is usually done by affidavit or declaration. If the judge feels that the witness testimony is material to the case, the judge will order that the witness be compelled to attend. Likewise, only a judge can order that an out-of-state witness be compelled to attend a hearing within California.
Subpoenaing Law Enforcement Officers
Service of a subpoena upon a peace officer is made by serving two copies of the subpoena to the officer’s immediate supervisor or whatever agent is designated to receive subpoenas on the officer’s behalf. Some counties allow service to be effected electronically via email or other designated device.
The superior may refuse service if insufficient time exists to deliver the subpoena to the officer. If a subpoena is served on the superior less than 5 days before the hearing date, the superior may refuse service.
The court can grant $12 per day for each day’s attendance, a reasonable amount for necessary expenses and, up to $18 per day, rather than $12, if the witness is employed and the employer does not pay the employee’s wages for the time the employee is at court.
Quashing a Subpoena
A court may quash a subpoena for the appearance of a witness if the facts warrant it; such is the case when the testimony that would be offered is not material to the case. When documents are ordered to be brought to the court, a judge may review the documents out of the purview of the parties to determine whether the subpoenaing party is entitled to receive the documents.
An attorney may also object at the hearing or trial in addition to, or as an alternative to bringing a motion to quash a subpoena.
What To Do When The Witness Fails to Appear
If a witness who has been properly subpoenaed fails to appear, counsel’s only remedy is to ask the court for a continuance. If a subpoenaed witness fails to appear, counsel may be able to obtain a warrant from the court ordering the sheriff to bring the witness to court. A failure to appear on a proper subpoena may also subject the witness to a contempt order from the court. If the witness is on call after being properly subpoenaed and fails to appear, the subpoena must state that failure to appear according to an on call agreement may be punishable as contempt, in order for the court to order the witness in contempt.
What Difference Does a Good Lawyer Have Regarding A Subpoena?
The quality of your attorney can have a significant impact on the subpoenaing and handling of witnesses at a hearing or trial. Subpoenas are highly technical and a good attorney will understand how to subpoena your witnesses and what to do if they fail to appear so that your criminal proceeding is handled quickly and efficiently.
To learn more about subpoenas or how to handle a subpoena in the Los Angeles area, call Spolin Law at (310) 424-5816 for a free consultation.