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.
