Case Results

How Do I Get Out of a Subpoena?

If you’ve been served a subpoena to testify in court, there are many reasons you might want to avoid it. Testifying in state or federal court does present risks, and you should avoid the chance of adverse consequences if possible.

However, you cannot just ignore the subpoena. If you do, you might face charges for contempt of court, a federal criminal offense. A knowledgeable criminal defense lawyer could help you get out of a subpoena.

What Is a Subpoena?

A subpoena is a legal document issued by a court order that requires action by the person named in that document. The term “subpoena” literally means “under penalty.” Failure to comply with a federal subpoena can lead to severe consequences, including incarceration and fines.

A subpoena generally requires a person to appear in court or at a legal proceeding. A person who is the subject of a subpoena must provide testimony about topics relevant to a specific case. You may also be issued a command to bring particular documents or evidence.

Protecting Your Interests after You’re Served

While you may want to protect yourself, you cannot ignore a subpoena.

However, you can still protect your interests if you’re served. There may be a legal reason that would allow you to avoid testifying or providing documents. A motion to quash the subpoena may get you out of testifying.

Self-Incrimination

You have a constitutional right against self-incrimination. The court cannot force you to answer questions that might implicate you in a crime.

For example, if the subpoena wants you to testify about an incident that you were part of that may be considered illegal, you cannot be forced to testify about your involvement.

Privilege

You may not have to reveal confidential information about a client, patient, or spouse if you have the legal privilege. For example, if a subpoena requests medical records and testimony about what a patient said to you, you may avoid it if the patient has not permitted you to talk about that topic.

While the court may still order you to comply with the subpoena, you have options to avoid it to prevent yourself from violating professional ethics codes and obligations.

Scheduling Conflicts

Your interests may be in other personal or professional activities scheduled at the same date or time listed in the subpoena. You can contact the party who issued the subpoena or the judge and try to reschedule.

If they don’t cooperate, you may need to contact your attorney or seek the court’s assistance. Any communication about rescheduling should be documented in writing to protect yourself.

Can You Get Out of a Subpoena?

There are ways you can get out of a subpoena. The grounds for challenging a subpoena include three categories: (1) service issues; (2) jurisdictional issues; and (3) scope issues.

Service Issues

A federal subpoena must be served appropriately. However, many federal agencies have adopted rules that allow a party to validly serve a subpoena in nearly any way possible.

For example, the U.S. Securities and Exchange Commission (SEC) allows the service of a subpoena by mail, in person, to an office or residence, by fax, or to legal counsel.

Judicial subpoenas for court hearings are generally more limited. For example, in most federal court jurisdictions, civil and criminal cases require in-person service of a subpoena. This is true in most state cases as well.

If your subpoena was not properly served, you may not have to appear for it.

Jurisdictional Issues

If a court does not have jurisdiction over the matter in the subpoena or the person named in the document, then the subpoena may also be invalid.

A jurisdictional issue may offer you temporary relief from testifying or presenting documents; however, it is not likely to completely get you out of a subpoena. The agency or party will not likely give up on obtaining the information.

Scope Issues

If there are substantive issues with the subpoena itself, then you may challenge the scope of the information being sought. You must make assertive grounds for challenging the scope of a subpoena, which may include the following:

• Topic is overly broad
• Insufficient details about information requested
• Undue burden on person named
• Privileged information

Moving to Quash or Modify the Subpoena

If you want to challenge a subpoena, your attorney must file a motion to quash or modify the subpoena. A motion to quash will attempt to get out of the testimony completely. Modifying the subpoena may allow you to protect your interests by restricting what you have to say and present at the hearing.

Ignoring a Subpoena Can Bring Serious Penalties

Do not ever completely ignore a subpoena. If you do not show up at the date and time listed on the subpoena, the court may issue an order to appear. If you fail to appear, the court may issue a contempt order. In federal cases, contempt of court is a criminal charge that can result in fines and jail time.

Contact an Attorney for Help Responding to a Subpoena

If you receive a subpoena, you should immediately contact a lawyer to help you decide what your best steps are going forward. We will listen to the details of your situation and confidentially give you legal advice about what you should do.

If you want to get out of testifying or presenting documents, we can help you file a motion to quash.

Call Harrison & Hart, LLC at (505) 295-3261 or contact us online to schedule a consultation.

What Happens at a Federal Detention Hearing?

You will face two immediate hearings before a judge if you have been charged with a federal crime. The first will be your arraignment, which involves the government reading official charges against you.

Then, if the U.S. Attorney wants you detained instead of released, a federal detention hearing will be scheduled to occur within three to five days. Reduce your anxiety about the federal detention hearing by knowing what to expect.

What to Expect at a Federal Detention Hearing

When you are initially arrested for a federal crime, you will be taken to jail. You must remain in jail until the U.S. Attorney agrees to your release or you challenge your incarceration at a federal detention hearing.

When Is the Federal Detention Hearing?

You are entitled to a federal detention hearing within three business days of your arraignment. That means if your arraignment occurs on a Monday or Tuesday, you could be out within the same week. However, if your arraignment is towards the end of a week, you may have to sit in jail over the weekend.

The Government Will Argue to Keep You in Jail

At the federal detention hearing, the government will argue that you should remain in custody until your case is resolved. They must present evidence that there is probable cause to believe you committed a federal crime. They must also show that if you were released, you would be a danger to the community or you are a flight risk.

Your Attorney Can Fight to Get You Released

Your federal defense lawyer has an opportunity to dispute those claims. Your best arguments at this juncture are that you are not dangerous and have no reason to leave the court’s jurisdiction.

The judge decides whether you can be released or held in custody until your trial.

Influencing Factors on the Outcome of Your Hearing

A federal judge considers many factors when deciding whether to keep you in jail or release you, including:

• Your criminal history
• The nature of your charges (e.g., if you are accused of being violent)
• The weight of the evidence against you
• The U.S. Attorney’s recommendation to detain or release you
• Your character, health, and history
• Ties to local family and the community
• Your financial resources
• Prior failure to appear in court
• Whether you are a threat to the community
• Your immigration status

These factors also determine the terms of your release if you can leave while your case is pending.

What Happens after a Federal Detention Hearing?

Upon completion of the federal defense hearing, you may be held pending trial or released on recognizance (ROR) with conditions of release.

You May Be Held in Jail Until Your Trial

You will not be released if the judge determines there are no conditions of release that will assure you will return to court proceedings or you pose a danger to society. You may be held without bail until your case is resolved.

You May Be Released

However, if the federal judge decides you are eligible for release, they may release you on personal recognizance. That means with the execution of an unsecured appearance bond. They may also release you to a third-party custodian, often a friend or family member responsible for you returning to court.

Conditions of your release might include:

• You must report to a probation officer periodically and upon request
• You must report any additional criminal activity (including traffic violations)
• You must surrender your passport
• You cannot leave the county, state, or court’s jurisdiction
• You must attend school or work full time
• You must consent to drug and alcohol testing
• You must wear a tracking monitor

A Federal Defense Attorney Helps During Your Detention Hearing

If you have an approaching federal detention hearing, you must hire a lawyer who understands how to get you out of jail. The federal defense attorneys at Harrison & Hart, LLC have extensive experience representing clients at all stages of cases. We will attend your detention hearing with you and fight to get you released.

Call us today at (505) 295-3261 or contact us online to schedule a consultation.

Mass Tort vs. Class Action

You may be familiar with significant cases that involve hundreds or thousands of people against large companies that result in million-dollar settlements. These cases are often class action claims made by people with similar injuries.

However, another type of claim can involve a single defendant called a mass tort. Understanding the difference helps you know which type of lawsuit might benefit your claim.

What Is a Mass Tort Claim?

A mass tort claim is a group of lawsuits filed by many people individually. These lawsuits are generally related to personal injuries where people have been harmed due to defective or dangerous products. These claims hold large companies liable for injuries suffered by the public.

In a mass tort claim, plaintiffs can all use similar evidence against the defendants; however, they prove their damages separately. This reduces legal fees and discovery costs while maximizing compensation for each plaintiff.

When Would Someone File a Mass Tort Claim?

Mass tort litigation involves each plaintiff (person who was harmed) filing an individual lawsuit against the company because they have unique injuries.

Those injuries would be so different than those suffered by others that they deserve an independent consideration of compensation. In many cases, a person can obtain a greater amount of compensation when they conduct an individual lawsuit in a mass tort claim. Defective products, health code violations, and foodborne illnesses are some examples of mass tort claims.

What Is a Class Action Lawsuit?

A class action is another lawsuit involving multiple plaintiffs and one defendant. However, in these claims, the plaintiffs join in filing one lawsuit and seek a single settlement or jury verdict that will be split between the plaintiffs.

Class actions benefit plaintiffs because they put pressure on the defendant. Defendants facing class action lawsuits are often ready to settle the case and do away with the large claim.

Plaintiffs in class actions pool resources with the same law firm to pay for legal fees and costs and to obtain a larger settlement.

When Would a Class Action Lawsuit Apply?

A court must approve class action lawsuits. Multiple plaintiffs cannot file a class action without first having it approved.

A class action must involve many people with similar injuries and damages. Otherwise, the compensation obtained would not be fair to everyone involved. You might consider a class action suit in situations involving unsafe drugs, unfair business practices, or victims of fraud, among other cases.

A class action is beneficial when plaintiffs cannot afford legal counsel or do not wish to participate directly in a case. Additionally, if an injured person wants to file their claim, they may opt out of the class action in some circumstances. There are deadlines to opt out of a class action.

How Are Class Actions Different Than Mass Torts?

Some of the differences between class actions and mass torts include the following:

• Mass torts result in individual recoveries for each plaintiff, whereas class actions get one large settlement split among plaintiffs.
• One law firm represents everyone in a class action, while multiple firms may be involved in mass tort claims.
• A plaintiff may get a more significant recovery in a mass tort claim; however, they will also have more legal costs.

A Personal Injury Lawyer Can Help You Understand Your Options

If you have suffered harm similar to that of many other people, you could join a class action or file a mass tort claim. You have options to consider when approaching your case. You should consult a personal injury lawyer who can review your injuries and help you move forward.

Call Harrison & Hart, LLC at (505) 295-3261 or contact us online for a consultation.

Can Federal Convictions Be Expunged?

You may have made a mistake in your past that resulted in a federal conviction. You might wonder if you can get that crime expunged from your criminal record.

However, unlike many state offenses, very few federal convictions get expunged. A knowledgeable federal expungement lawyer helps determine if you qualify for post conviction relief.

Crimes Carrying Possible Federal Charges

Crimes resulting in federal charges violate federal laws, occur on federal land, or cross state lines. There are many different types of crimes that may be charged as federal offenses. Many of those crimes parallel state offenses that may be similar. However, elements and penalties may be different.

Some common crimes that may result in federal charges include:

• Arson and explosive violations
• Bank embezzlement and bank fraud
• Bankruptcy fraud
• Bribery and public corruption
• Computer and e-mail intrusion
• Counterfeiting and forgery
• Corporate fraud
• Credit card fraud
• Drug-related offenses
• Violations of environmental regulations
• Firearm offenses
• Identity theft
• Human trafficking
• Insurance fraud
• Money laundering
• Murder or manslaughter on federal property
• Pornography or child pornography charges
• Sexual abuse and exploitation
• Solicitation to commit a federal crime
• Tax offenses
• Terrorism
• Wildlife violations
• Wire fraud

Can Federal Convictions Be Expunged?

When a conviction is expunged, it clears your criminal record as if it never existed. Once expunged, no one can see your federal arrest or conviction.

However, most federal offenses are not eligible for expungement. In most jurisdictions, only defendants with minor offenses under the Controlled Substances Act can get a record expungement. Federal criminal record expungement is extremely limited.

Some federal courts acknowledge a judge’s power to “make things right,” which may include expunging an arrest or conviction record. Depending on where you were convicted, you could seek an expungement of crimes other than minor drug offenses.

Important Exception for Certain Drug Charges

The federal government allows expungement for minor drug convictions, including simple possession of a controlled substance.

If a person was under 21 at the time of the offense, they can apply for an expungement, which will be automatically granted.

Also, if a person of any age is found guilty of a minor drug charge, they have no prior such offenses, and they comply with their probation, the federal court would dismiss the proceedings against them. This would clear their criminal record.

How to Expunge a Federal Conviction

There is no specified process to request a federal expunction. However, applying in the federal district court where you were convicted is best. You may also write a letter to the judge who presided over your case.

There is no published form to get an expungement. You should include your name, case number, a summary of the facts of your case, and reasons an expungement should be granted.

You must be persuasive and make claims about your rehabilitation and the miscarriage of justice if you must reveal your conviction to your employers and others.

Federal Clemency

Federal clemency is a commutation of a sentence granted by the President of the United States. It essentially reduces a federal prisoner’s ruling but does not restore other rights, such as the right to own guns.

Federal clemency was most common before the 1980s; however, it has become less frequent in recent years. Under President Barack Obama, 1,715 inmates were granted federal clemency. Despite presidents granting fewer clemencies, it is still an option for rehabilitated inmates.

A Federal Expungement Lawyer Can Evaluate Your Case

If you are interested in expunging your federal conviction, you should contact a lawyer familiar with the federal process to do so. While most people do not qualify for expungement, it may be possible to regain some of your civil rights that were removed when you were convicted.

Contact Harrison & Hart, LLC at (505) 295-3261 , or contact us online to schedule a consultation.

How to Win Post-Conviction Relief

The American justice system is flawed, and many innocent people are wrongfully convicted. You may have been found guilty of a crime, but that doesn’t have to be the end of your case.

You may have options for post-conviction relief that result in a modified sentence. You may even get your conviction overturned.

What Is Post-Conviction Relief?

Post-conviction relief is a sentence reduction or overturning of a conviction after the conclusion of your trial. It may also happen after you plead guilty and sign a plea agreement.

Types of Post-Conviction Relief

Many types of post-conviction relief exist in New Mexico. Both state and federal courts allow you to seek sentence and conviction modification after the end of a trial.

Motion to Correct an Illegal Sentence

If the sentence imposed by the court does not comply with the guidelines set by statutes, you can challenge that sentence with a motion to correct an illegal sentence. This may result in a modified sentence. If you have already served most of your sentence, you could get released for time served.

Motion to Correct a Sentence Imposed in an Illegal Manner

If the court orders you to serve time for a sentence imposed illegally, you may get relief through a post-conviction motion.

For example, if you are ordered to pay an excessive fine or not allowed parole without reason, you may be successful with a motion to correct a sentence imposed in an illegal manner.

Motion to Reduce a Sentence

Certain mitigating circumstances may be presented through a motion to reduce a sentence so you serve less time in jail. If the court did not indicate that it considered mitigating factors during sentencing, you may have a better chance of winning a motion to reduce a sentence.

Motion for Relief from Judgment

Clerical mistakes and other administrative errors can result in the imposition of an improper judgment or sentence. If your sentence does not seem correct, you may get help through a motion for relief from judgment.

Petition for a Writ of Habeas Corpus

You may file a petition for a writ of habeas corpus if you feel there are grounds for relief that have not yet been considered in your case. “Habeas corpus” comes from Latin and means “show me the body.”

When you file a petition for a writ of habeas corpus, you are asking a court to order a government agency, law enforcement agency, or lower court to prove that they have reason to hold you in prison.

Grounds for Post Conviction Relief

There are many grounds for relief, including the following:

• You received ineffective assistance of counsel
• The trial court made an error
• There was prosecutorial misconduct
• There was juror misconduct
• There was police or investigator misconduct
• There is new evidence that could not have been discovered previously
• You are actually innocent

Any violation of your state or federal constitutional rights may be used to argue that you deserve post-conviction relief of your sentence or conviction.

The Procedure for Obtaining Post-Conviction Relief

The procedure to obtain post-conviction relief depends on the type of relief you seek.

Deadlines for Post-Conviction Relief

New Mexico has no specific deadline within which post-conviction motions must be filed except in death sentence cases.

If you were sentenced to death in a capital case, you must apply for post-conviction relief within 180 days of the appointment of post-conviction counsel.

Federal petitions for writs of habeas corpus must be filed within one year of the finalization of the denial for review from the highest appellate court.

Process for Filing Motions and Petitions

Motions and petitions for post-conviction relief should be filed to the trial court. In your motion or petition, you must include your name, inmate number and location, case number, a summary of the facts, and all your arguments regarding why post-conviction relief is appropriate. In most cases, this will include a motion and a memorandum in support.

The court will likely schedule a hearing to allow you to discuss your arguments. It’s best to attend court with a post-conviction lawyer who can use the evidence to your benefit.

If the trial court denies that motion or petition, then you can appeal that decision to the next level, up to the New Mexico Supreme Court.

Contact a Post Conviction Lawyer Today

Post-conviction relief is available to many people serving decades or even life in prison. You have an opportunity to reduce your sentence, get a new trial, or even get out of prison. By working with a New Mexico post conviction attorney from Harrison & Hart, you will understand your rights and get the best outcome possible.

Call Harrison & Hart, LLC today at (505) 295-3261 or contact us online to schedule a consultation.