Litigation & Appeals Law
What is a Subpoena?
The legal system uses all kinds of formal terminology to describe simple concepts. One of those is a “subpoena” which is pronounced “suh-pee-nuh” and is Latin for “under penalty”. A subpoena is a legal document that formally requests someone to appear and testify in front of a legal body, with potential penalties if the person fails to do so.
So, what kind of legal proceedings might necessitate a subpoena, and what happens if you don’t comply with one? Here’s a look.
Subpoenas are most often issued by a court of law regarding the cases they oversee, and orders to testify could relate to both civil and criminal matters in the court. Generally, the attorneys representing their clients in the case will request that the judge issue a subpoena to a witness or other party, and the judge will review the request before issuing a formal court order.
Grand juries will also issue subpoenas to gather information for criminal indictments, and legislative committees and other administrative agencies could issue subpoenas as part of their investigatory powers.
So, if a prosecutor thinks you have information relating to a crime, they may request a subpoena ordering you to testify before a grand jury.
Subpoenas generally come in one of two forms, each with fancy Latin phrasing:
- Subpoena Ad Testificandum: The most common subpoena orders a person to appear and testify before the requesting body
- Subpoena Duces Tecum: A rarer subpoena that orders a person or organization to produce documents, records, and other physical evidence, to the requesting body.
Subpoenas ad testificandum can sometimes be satisfied by giving testimony by phone or video conference, and parties can satisfy subpoenas duces tecum by mailing originals or copies of documents to either the requesting party or directly to the court.
For instance, if you witnessed an accident at work and the injured person is filing a lawsuit, the court could subpoena you to testify about what you saw. The court clerk could also subpoena you to provide any records of the accident kept at your workplace.
It is best to think of a subpoena as a formal order, rather than a mere request, and failure to comply can have serious consequences. That said, there are legitimate ways to challenge a subpoena or refuse the order.
You can argue that the subpoena is overly broad or lacks specificity, or that complying with the request would be unduly burdensome. As an example, a request for all your phone text communications for the past two years would probably be overbroad. Or a subpoena to testify in a case in Portland, Maine, when you reside, work two jobs, and have family responsibilities in Portland, Oregon, could be too burdensome.
There are also legal reasons not to comply with a subpoena. The information the subpoena seeks could be covered under one of many “privileges”. These privileges include protections such as spouses can’t be forced to testify against each other in most cases, and lawyers, doctors, and religious counselors can’t be compelled to reveal the contents of confidential communications with clients, patients, and penitents.
Additionally, the Fifth Amendment protections against self-incrimination protect both criminal defendants from testifying in their own case and anyone else from making testimonial statements that may expose them to criminal liability. So you can refuse to testify in your own criminal case, and plead the Fifth if answering questions in another court case could mean admitting to a crime.
Absent one of the exceptions above, however, failure to comply with a subpoena within the specified time can carry some kind of punishment.
The most common penalty for the failure to comply with a validly issued subpoena is contempt of court. That may not sound too bad, but contempt charges can mean heavy fines and even jail time. For instance, refusal to comply with a subpoena issued by a congressional committee could be considered contempt of Congress, earning you 12 months in jail and $100,000 in fines. As an example, journalist Josh Wolf served 226 days behind bars from 2006-2008 for refusing to comply with a federal grand jury subpoena asking for video footage he shot of a protest in San Francisco.
There can also be legal ramifications if you don’t tell the truth in response to a subpoena. Even if you’re not on the witness stand in court, most of the official proceedings under which you would provide testimony or evidence, like depositions, are subject to perjury statutes that also carry criminal penalties of fines and jail time.
While the consequences may not be as dire in your case, you should never just ignore a subpoena. If you’ve been subpoenaed to testify or produce evidence in a civil case, criminal prosecution, or other investigation, contact an experienced attorney to advise you on how to proceed.