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What is a Subpoena and How is It Used?

Posted on April 3, 2013 by Mintzer Law

From the Latin “under punishment,” a subpoena is a written document that requires a person to appear before a court or other legal proceeding at a certain time and place. Failure to do so results in punishment, such as a fine or jail time. Even if the time or place of the legal proceeding is changed, the subpoena remains binding. Conversely, without a subpoena, no one is obligated to provide testimony or documents.

Sometimes people confuse the termsĀ summons and subpoena. These two terms are similar because they require a person to appear before a legal proceeding. However, a summons is issued to someone who has been named in a civil lawsuit or who faces criminal charges, while a subpoena is issued to merely strengthen a case.

What is the Purpose of a Subpoena?

The purpose of a subpoena is to obtain proof, and this proof falls into two categories: documents, which require a subpoena ad testificandum, and testimony, which requires a subpoena duces tecumand. This distinction means that a subpoena could be for something as simple as income-tax returns or as complicated as a testimony.

Who Serves a Subpoena?

Although the exact process varies by state, an attorney who requires certain evidence requests a subpoena to obtain the evidence. Some states require subpoenas to be served by the requesting attorney, some require a law officer to serve subpoenas and some allow subpoenas to be mailed.

Regardless of how it is served, a subpoena will always detail the time and place of the legal proceeding, the persons involved, the required documents and/or the required testimony.

How to Handle a Subpoena

Citizens who are served subpoenas should never panic but should remember that subpoenas are merely information requests. The first step is reading the subpoena to understand the request. For example, if the request is for documents, then finding and storing these documents safely is a priority.

No one should ever ignore a subpoena. Failure to respond will be considered contempt of court, a charge that carries both civil and criminal penalties. Sometimes, people may be uncomfortable with a subpoena’s request. Therefore, the court allows challenges. An attorney can determine if there are sufficient legal reasons to challenge the subpoena.

Subpoenas are serious legal documents that should never be taken lightly. They absolutely require some kind of action. Perhaps, documents need to be located, or perhaps, a simple deposition is all that is required. However, if the situation is more complex, solid legal advice is always a good investment.