August 16th, 2021
Posted By
Stephen Lebedevitch
subpoena

A subpoena can seem to come from nowhere, disrupting your life and your business. Unless you are in an industry that receives them all the time, you may not know what to do if you are served a subpoena. You may even consider simply ignoring it. But that could cause even more trouble, especially if the subpoena is to testify in a criminal case.

What is a Subpoena?

A subpoena is a demand for you to either testify in court as a witness or provide evidence in a civil lawsuit or criminal case. A subpoena can come from the court directly or from an attorney representing one of the parties. It is always directed to someone outside the legal proceedings (an order for the parties to appear is called a summons). This means you may be served a subpoena without even knowing there is a civil or criminal case going on.

If the subpoena requires in-person testimony, it may come with a check for the cost of one day’s appearance, plus mileage. In other cases those statutory fees as a witness may be paid by the court clerk when you arrive to testify. In either case, this amount won’t be very significant unless you have been retained as an expert by one of the parties. If you are subpoenaed in a professional capacity you may be required to turn this fee over to your employer.

Types of Subpoenas

Subpoenas generally take one of two forms:

  • Subpoena Ad Testificandum: Which requires a specific person to appear in a specific place -- usually a courtroom or attorney’s office -- and testify at a specific hearing or deposition.
  • Subpoena Duces Tecum: Which requires the person to produce documents, records, materials, and other physical or electronic evidence before a specific deadline.

A subpoena may require both testimony and production of documents. For example, a treating physician in an auto accident case may be called to testify and asked to bring the patient’s medical records along with any notes they made about the patient’s care. A criminal defense attorney may subpoena a witness of a police arrest to testify about what they saw, and to bring their cell phone if they recorded the event.

Method of Serving a Subpoena

In Connecticut, subpoenas for witnesses must be served by “an officer, indifferent person or … an investigator of the Division of Public Defender Services” in criminal cases. This means that a police officer or private process server will hand deliver the subpoena to you or a responsible person at your home or office. Sometimes this can happen on short notice, by law a subpoena can be served up to 18 hours before the time scheduled for the witness to appear.

Penalty for Ignoring Subpoena Demands

If you receive a subpoena and do nothing, you can receive a penalty for ignoring it. The word “subpoena” is Latin for “under penalty.”

If you don’t do what you are ordered to do in the document -- appear to testify or produce the requested evidence -- you can be fined $25 and forced to pay damages to the court and the parties, which might include covering their attorney fees for the hearing.

What to Do if You are Served a Subpoena

When you are served a subpoena, you should:

  1. Carefully read what you are being ordered to do: testify, produce evidence, or both
  2. Mark the hearing or deposition date, and the deadline to produce documents on your calendar
  3. Contact the attorney who issued the subpoena to discuss what is expected of you
  4. Decide whether you can comply with the subpoena, or if you need to object
  5. If you do produce evidence, track the reasonable costs of that production

There are reasons why you might object to a subpoena, or ask the court to modify it, rather than answering it directly:

  • Scheduling conflicts
  • Avoiding self-incrimination (pleading the Fifth Amendment)
  • Asserting a privilege against testifying (as a person’s doctor, therapist, religious leader, or spouse)
  • Protecting professional secrets
  • The demands are unnecessarily burdensome or expensive

If you are called to testify you will generally need to appear and make your objection to the court in person. However, if you simply need to reschedule, you may be able to speak to the attorneys in the case and find a better date. If the hearing is rescheduled, make sure they send you a new Notice of Hearing or Notice of Deposition in writing.

You may also object to a subpoena to produce evidence. This is generally done by filing an objection with the court that states the reasons you cannot do what has been asked of you. The court may still order you to comply, at least in part, but you may be able to request a protective order or limit the exposure of the privileged information.

Get Help Responding to a Subpoena

Don’t get penalized for ignoring a court order to testify or produce documents. If you have been served with a subpoena and think it goes against your interests, you may need to hire an attorney to file your objections and preserve your rights. Based in Fairfield, Connecticut, The Lebedevitch Law Firm handles a variety of criminal defense and personal injury lawsuits in Fairfield and New Haven counties. We can help review the details of your subpoena and protect your interests in court. Contact us for a free phone or video conference consultation.