A subpoena is a formal demand for someone to testify in court. A Los Angeles County prosecutor or criminal defense attorney may issue a subpoena to someone for testimony or for them to bring documents or other evidence to court. After you have been charged with a crime, you have the right to defend yourself.
There might be witnesses who could provide useful testimony or have documentation that would support your case. Often, a witness may not want to get involved and refuse to cooperate and provide useful testimony or documents on your behalf.
If the Los Angeles County District Attorney's Office needs a witness to cooperate, they have the power to issue a subpoena. Likewise, this same subpoena power is extended to a defendant. The California Constitution gives a defendant in a criminal case the legal right to confront accusers and to compel witnesses to appear in court to testify on their behalf.
In other words, both the prosecutor and defendant can use a subpoena to compel witness appearance. There are two different types of subpoenas. Again, a witness subpoena is often used to make someone appear at a hearing.
Another type of subpoena, known as a duces tecum, requires a witness to produce documents or other evidence at a hearing. In some criminal cases, documents might be needed from someone unrelated to the case. These records can be obtained directly by both sides if the party who has the records signs an authorization to release them.
If not, the attorney might need a subpoena duces tecum issued and signed by a judge that would require the party to deliver the documents to the court for review to determine if the attorney, typically the criminal defense attorney, are entitled to receive the documents.
If you are a defendant in a criminal case, contact the Los Angeles criminal defense lawyers at Eisner Gorin LLP to review the details in order to determine your best legal options and whether a subpoena in needed to support your case. Now that we have covered a general overview of subpoenas above, let's take a more detailed look below.
Two Types of Subpoenas in Criminal Cases
As discussed above, a subpoena is a commonly used legal tool to compel either the production of documents or other physical materials, the attendance of a particular person in court, or both. While parties to a criminal case issue and serve subpoenas, the Court enforces them. For this reason, a subpoena is a court order and has the force of law.
A subpoena can be served personally by anyone other than a defendant in the criminal case. While peace officers are required to serve subpoenas to the parties in a criminal matter, private Los Angeles criminal defense attorneys frequently use private process servers to make sure they are served in a timely manner.
Service of the subpoena has to allow the witness sufficient time to prepare and to travel to the court. It may be possible to serve a subpoena by mail or by messenger, but these methods of service are not effective unless the witness acknowledges the receipt of the subpoena. There are two types of commonly issues subpoenas in Los Angeles criminal cases.
The first is a subpoena ad testificandum, or almost always referred to simply as a witness subpoena, which requires the personal attendance of a person so they may testify in court. The subpoenaed party may be a witness to a crime, or anyone else involved with a criminal case who either the prosecution or defense wish to examine in a motion hearing, preliminary hearing, jury trial, or other litigated proceeding. The witness must come to court on the date and time specified and be sworn in to testify.
If a witness who was properly subpoenaed doesn't appear, the criminal lawyer will typically ask the court for a continuance. It may be possible to obtain a warrant from the court that will order the sheriff to bring the witness to court. A failure to appear could subject the witness to a contempt order from the court.
Subpoena Duces Tecum
The second common type of subpoena in a California criminal case is the subpoena duces tecum, or “SDT.” An SDT differs from a subpoena for witness testimony in that the response sought from the subpoenaed individual comes in the form of physical items, most commonly documents or business records.
For example, in a case involving insurance fraud, the prosecution or the defense might wish to examine the insurer's claim file related to the transactions which form the basis for the charges.
The attorney for either party would issue an SDT to the legal department of the insurer requesting specific records. The subpoenaed party will then send the responsive documents to the court along with a certification from the custodian of records.
Court Review of Subpoenaed Documents
The Los Angeles criminal court plays an important gatekeeping function with respect to SDT compliance, in particular. While the subpoena power of parties in criminal litigation is significant, it is not unbounded.
Parties cannot request wholly irrelevant material or make requests simply for the purpose of harassing a witness. For this reason, the court always has the power to review subpoenaed documents and find that they are not relevant to the litigation, and therefore withhold them from the parties.
Furthermore, subpoenaed parties have standing to challenge the subpoenas they have been issued by filing a motion to quash the subpoena with the court. A motion to quash could be based on many legal grounds which excuse non-compliance. One common ground for refusal to comply with a subpoena is the privileged nature of the requested documents.
For example, a medical provider might be served with an SDT to provide confidential medical records for one of their patients. The provider might then move to quash the subpoena on the grounds that the medical records are privileged, and therefore the provider is exempt from compliance. The same would be true for attorneys asked to produce records from their clients' files.
Fifth Amendment Right Against Self Incrimination
A party might also have a statutory or constitutional right not to respond to the subpoena. Imagine a witness to a crime who is served with a standard subpoena for their testimony at a jury trial.
Unbeknownst to the Los Angeles County prosecutor, the witness was in fact engaged in criminal activity at the time they witnessed the conduct which the prosecutor is interested in having the witness testify to at trial.
The witness has a good faith belief that, if forced to testify, he or she would also be incriminated and might face prosecution. On the basis of their Fifth Amendment right against self-incrimination, the witness could move to quash the subpoena to avoid being forced to disclose the criminal conduct.
Ignoring Subpoena Is Not An Option
As outlined above, parties may have a variety of valid justifications for refusing to comply with some, or all, or the requests issued to them in otherwise lawful subpoenas or SDTs. That said, subpoenas are court orders.
Simply ignoring a subpoena is not an option. Failure to obey a lawful subpoena can result in several adverse consequences. First, at the request of the party which issued the subpoena, the court may issue a bench warrant for the subpoenaed party, making him or her arrestable by any peace officer with whom he or she comes into contact.
Disobeying a subpoena may also be punished with a contempt charge under California Penal Code § 1331. The maximum punishment for a misdemeanor contempt charge in California is generally 6 months in the county jail, a $1000 fine, or both.
Consult with Our Criminal Lawyers
At Eisner Gorin LLP, our experienced criminal defense attorneys frequently issue subpoenas in criminal cases and litigate issues related to subpoenas in criminal court.
If you, or someone you know, has been issued a subpoena and is unsure how to proceed, please contact our office for an initial consultation. Our attorneys can advise you about your rights as a subpoenaed party. Call our law firm at 877-781-1570 to review your case.
Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776 www.egattorneys.com/