A very important topic of conversation that we have to have with you as criminal defense attorneys is about the subpoena. What is a subpoena, you might ask? It's a major part of the foundation of the justice system in the United States. A subpoena is a legal document that compels a person to testify, appear for a deposition, or produce documents or other evidence in connection with a legal proceeding. 

We've talked about subpoenas a few times in the past, but today, we want to educate you on the finer details behind this part of our job as attorneys. If you are able to understand how a subpoena works, it helps us when it comes time to defend you in court.

In this blog, we will break down what a subpoena is and give you a guide to many different types of subpoenas and how they work, in accordance with New York State law.

What Is a Subpoena?

Let's expand on that definition of a subpoena. Based on what we said at the beginning of the blog, when expanding on the definition, it requires someone to appear in court, testify at a deposition, or produce documents or evidence relevant to a case. Here in the state of New York, a subpoena is governed under Article 23 of the New York Civil Practice Law. 

A subpoena may require a witness or party to appear and provide testimony. If a subpoena is not complied with, there would be penalties due to contempt of court. It is an act of disobedience, disrespect, or when someone defies the authority and dignity of a court of law. 

Different Types of Subpoenas

We want to take a look at several different forms of a subpoena, starting with a Subpoena Ad Testificandum. A subpoena ad testificandum compels testimony. If a witness has firsthand knowledge of an alleged crime they saw, then they come in to give their stance. A criminal defense attorney is allowed to subpoena said witness via a profession, such as a police officer, expert witness, or investigator, to testify.

The next type of subpoena is called the Subpoena Duces Tecum. This one requires a person or organization to produce specific documents, records, or physical evidence for a trial, hearing, or deposition. 

What's included in those documents? It will either be medical records, police reports, finance and business papers, phone records, or surveillance footage. Under New York Criminal Procedure Law Article 610, defense attorneys and prosecutors are both allowed to issue this subpoena. Medical or government records do need a review beforehand before submitting.

Then there's a subpoena like the Information Subpoena, which is used in proceedings for civil judgment, and it helps identify a debtor's assets through written questions answered under oath. 

They are served to very specific individuals or groups, like employers, a general business, debtors, or a bank. Other than the written questions, it also has to include a prepaid return envelope. In New York State, a person has seven days to respond (CPLR §5224).

How to Serve a Subpoena, Challenge It, and What Happens If It's Ignored

We just mentioned several examples of who could be served a subpoena, but who does the issuing? In New York State, subpoenas are issued by defense attorneys, judges, court clerks, or perhaps another major government agency if, say, the crime requires them to step in. Because some of these subpoenas we list involve the use of confidential records, it would be required to have judicial approval before they can be enforced.

If a subpoena is not served correctly, it may be unenforceable. In New York State, in many cases, subpoenas requiring attendance must be personally served in accordance with procedural rules, although different service methods may apply depending on the type of subpoena and proceeding. There are some conditions for who the server of the subpoena can be. They must be at least 18 years old, cannot be a party to the action of serving it, and a fee may have to be paid. 

Can you challenge a subpoena? Yes (CPLR§2304)! A subpoena recipient can file a “motion to quash” or modify the subpoena if it is unreasonable, oppressive, or seeks privileged information. Let's take a look at an example: certain medical records, attorney-client communications, and protected mental health records may be shielded from disclosure. 

Finally, what happens when you ignore a subpoena? Ignoring a subpoena can lead to serious consequences. As we noted already, you will be held in contempt, concerning specific criminal matters, you might be issued a warrant, and then you'll receive monetary penalties as well.

Under CPLR §2308, courts have the authority to enforce a subpoena and penalize you if you don't comply with the order. However, courts also recognize that subpoenas must comply with procedural and constitutional requirements before enforcement occurs.

Why a Subpoena Matters to Criminal Defense

For us as defense attorneys, a subpoena can help obtain evidence or testimony that may not otherwise be readily available to the defense. It's a part of the justice system that makes our job easier. A good subpoena can reveal a great deal of information that helps our case when defending you. Criminal defense attorneys must carefully comply with New York State law and procedural rules to ensure evidence is admissible and enforceable. 

These tools help both sides obtain evidence necessary to present their cases fairly. Understanding what a subpoena is, the different types of subpoenas, and how they work will go a long way in helping us help you. If you are looking for legal representation or want to learn more about a subpoena, please give us a call, and we will be happy to help. Reach out through our contact form, and we will be in touch.

DISCLAIMER: PAST RESULTS DO NOT GUARANTEE FUTURE RESULTS. THIS IS NOT LEGAL ADVICE. DANIEL DUBOIS AND ANY DUBOIS LAW ATTORNEYS ARE NOT YOUR ATTORNEYS UNLESS RETAINED. INFORMATION SHARED HERE IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. EACH CASE IS UNIQUE AND IS DECIDED BASED ON ITS OWN FACTS AND MERITS AND CANNOT BE COMPARED TO OTHER CASES WHICH MAY HAVE HAD DIFFERENT FACTS AND CIRCUMSTANCES.