After being given a subpoena, many people wonder what valid reasons they could use to get out of it. Being served with a subpoena can be intimidating if someone has not encountered it before.
During the past decade working as a defense lawyer, I have heard plenty of excuses people made to get out of responding to a subpoena.
This article will provide some valuable insight into the process surrounding subpoenas and several reasons why somebody might be able to avoid responding to them.
- Subpoenas let the court and jury know about the essential physical evidence of a case so they can decide quickly.
- If you ignore a subpoena, the person who sent it to you can take you to court. This is called contempt of court.
- If you get a subpoena, it is not a good idea to ignore or try to avoid it. It could be risky.
What Is a Subpoena?
A subpoena is an official request for legal documents or one’s appearance in court. If you receive a subpoena and don't comply with its terms, you may get punishments like fines, jail time, or both .
Frequently, prosecutors are compelled to dismiss cases against criminal defendants because witnesses fail to appear.
The Purpose of a Subpoena
A subpoena is a court order that demands either testimony or specific documents. The word 'subpoena' is Latin for 'under penalty,' meaning the person receiving the subpoena process must follow through with supplying information to the court or face a negative consequence.
Subpoenas are routine in a legal proceeding of a criminal case where witnesses may be more unwilling to show up; however, in a civil case, they will also use the subpoena for documents that one of the parties doesn't have.
Types of Subpoenas
The court may serve two subpoenas on a person, as mentioned earlier. These requests demand different sorts of information from the individual in a court hearing. There are two types:
1. Subpoena ad testificandum
A subpoena to testify legally mandates that the person receiving it must appear and share any relevant information they have for the case. Oftentimes, this is done by testifying at trial in a criminal case.
Still, it can also include testifying at a deposition or conference before trial, where one party asks questions under oath from a witness. Sometimes a subpoena includes both, but it must consist of dates when testimony is necessary.
2. Subpoena duces tecum
The subpoena duces tecum demands that the recipient produce any documents specified in the subpoena. These documents include business records, medical records, notes, emails, and account statements.
The person who receives a subpoena for any legal document relevant to a lawsuit could often recover production costs, such as copying or shipping fees. This is more common because it is easier to get someone not involved with the case to hand over the documents requested by the court order.
Some people may want to avoid complying with a subpoena to testify in court, but they're often more resistant to comply when personally asked to testify in a court hearing.
This is mainly because testifying at trial can feel like too much pressure. But there are things a person should think about before trying to avoid a valid subpoena that could impact the party's interests.
4 Valid Reasons to Get Out of a Subpoena
Avoiding or ignoring a subpoena to testify in court as a witness is not advised and can be risky.
Even if you go to court but don't want to answer questions, you can be charged with contempt of court and go to jail. However, there are some legal reasons why you should try to avoid one.
If you live within the court's area, somebody will eventually serve you a copy of the subpoena in person. If you're only a potential witness, then delaying might work for some time.
But the court could sanction you if you're one of the parties involved and don't show up to comply with discovery. In other words, it's better to face reality and deal with being served papers than try to hide from service.
If you are subpoenaed to provide documents or other materials, you may object in writing to the subpoena. If you properly object to a subpoena, the other party will need to get an order from the compelling court to provide what was requested.
3. Undue Burden
There are certain circumstances in which a judge may issue an order to either quash or modify the subpoena issued to you.
These situations generally arise when the subpoena does not allow for a reasonable amount of time to comply or if it requires someone to travel more than 100 miles from where they reside, work, or regularly conduct business in person.
4. Privileged Information
The judge also has the power to dismiss or change a subpoena if it demands confidential information or if disclosing it would reveal a trade secret or other confidential research.
"Subpoenas to produce documents are more common than subpoenas to testify. "
- Adam Curley, Attorney
3 Ways to Avoid a Subpoena
There are various reasons a party could attempt to get out of testifying or providing documents in response to a subpoena.
However, an attorney can help you determine if there is a valid excuse for your particular situation.
Some examples of when this might be the case include:
- Service: A subpoena, similar to any other pleading, must be served on the recipient to be valid. This implies that it must be given to the person in a way that there is a probability they will receive it.
- Privilege: The attorney-client privilege and the self-incrimination immunity are two types of privilege that may work to lessen a subpoena. Though it likely will not eliminate the subpoena, it could limit what information is shared with law enforcement. The attorney-client privilege n is privileged when between a client and their lawyer.
- Jurisdiction: The term "jurisdiction" in legal terms refers to a court's power and authority to decide a case. This is quite a complicated concept, but it can affect how an individual handles their subpoena in two ways. First, the court that issued the subpoena may not technically have anyway because they lack jurisdiction over the case.
Secondly, there might be reasons why the person receiving the subpoena can't be tried by that specific court– which would also mean that the same court has no jurisdiction. Grasping all of this information can be challenging, so it might be best to seek professional legal counsel if you're unsure.
Can I Refuse to Testify if I Get a Subpoena?
No, you cannot refuse to testify if you get a subpoena. However, there are certain situations where a person may have a legal right to deny giving testimony. For example, if the person is married and their spouse refuses to waive spousal privilege, they cannot be forced to give testimony that would incriminate their spouse.
What Are the Risks of Avoiding a Subpoena?
The risks of avoiding a subpoena are punishment for contempt of court, which may include monetary sanctions or, in rare cases, imprisonment.
If the Subpoena Is Directed to Me Personally, Can Someone Else Accept Service on My Behalf?
No one else can accept service on your behalf if the subpoena is directed to you personally. Every subpoena requires personal service by law.
Do You Want to Get Out of a Subpoena?
If you want to get out of a subpoena, seek legal counsel and call Schmidt & Clark, LLP for your free consultation sessions.
We have experienced lawyers to help you understand the best action to protect your rights. We will listen to your story and guide you through all the legal steps required so that you can make an informed decision.
Our attorneys are experienced in handling subpoenas and any associated litigation – we ensure that every single aspect is considered before taking any step forward.