You may receive a subpoena to compel testimony in a court proceeding or produce documents in support of the state’s or defendant’s case. This is often an alarming experience for people and the first instinct is to answer it immediately.
However, a subpoena may not be issued properly or even request off-topic or inappropriate information. They can become burdensome and even lead you to incriminate yourself. Here are six questions you should ask if you receive a Nevada subpoena so you can avoid discovery pitfalls.
1. Is the action identified?
Every subpoena should include your name, contact information, and where you should report for testimony. If the subpoena requests documents, it must contain a physical or email address for delivery.
The case name should be clearly displayed as well. While this is a rare occurrence, you may be asked to testify in a case where you did not witness a crime. Unless you hire an attorney to quash the subpoena, you could be held in contempt of court. So even if a subpoena appears to be mishandled, do not think ignoring the problem will make it go away.
2. What is requested?
There are two types of subpoenas used in criminal court. One may ask you to testify during grand jury proceedings or trial. The other requests documents and records to support one side of the case or facilitate further investigation.
Many people automatically assume the subpoena requests testimony and worry about the time commitment. However, it is possible that you can provide records in lieu of testimony. That can save you time and make this legal duty less time consuming.
However, if your time is requested for testimony, make a note of the date and time so you do not risk missing it and facing contempt of court charges.
3. Did you receive a fee?
Witnesses in criminal or civil suits must receive a fee of $25 for each day of testimony. This should be provided at the time the subpoena is served. If you live far away from the venue for the court hearing, you may be reimbursed for mileage too.
If the fee was not included, that is grounds to quash the subpoena. Since court appearances are rarely a convenient experience, do not agree to testify unless you receive the fee.
4. Is it in your best interest to testify?
Defendants may receive subpoenas for records. If there is a chance that this may lead to self-incrimination, the subpoena is unconstitutional and may be quashed.
Even as a witness, there is still a risk for self incrimination. If providing the records may leave you vulnerable to criminal charges, make an appointment with a criminal defense attorney immediately.
Witnesses may fear for their personal safety in some cases. If that is your situation, your best course of action is to contact the court and the attorney who requested the subpoena and explain the situation. They will likely make allowances so you can testify safely.
5. Were you served correctly?
This issue needs to be addressed by an attorney if you faced irregularities. Subpoenas issued in felony cases must be served personally by a peace officer or process server. In misdemeanor trials, they may served through registered or certified mail.
Be wary of last-minute subpoenas. You are supposed to receive 10 days notice if you are served by mail and personal service should offer at least two days notice. If the schedule is tighter than either of these timeframes, you were likely served incorrectly and that offers ground to quash.
6. Is it worth the effort to quash this subpoena?
You cannot ignore a subpoena simply because you do not wish to testify. Doing so results in contempt of court charges and that may lead to fines and a jail sentence.
Likewise, avoiding testimony is not a good reason on its own to quash a subpoena. Even if you are successful at quashing the subpoena, it is likely that attorney will attempt to subpoena you again.
Sometimes, if you are served correctly and have testimony that may be useful to the case, it is best to just cooperate. However, nonpayment of witness fees, being forced to incriminate yourself or substantial burden in a discovery subpoena (e.g. a request for 20,000 pages of documents) may make the quashing effort worth it.
If the subpoena is merely inconvenient, it is best to communicate with the attorney and court who issued it. Trials can be rescheduled based on witness availability. If you need more time to gather documents, most attorneys are willing to work with you and grant more time.
Basically, a motion to quash should only be activated in the most dire circumstances. Most subpoenas require give-and-take to assure compliance rather than being quashed entirely.
The penalties for ignoring a subpoena are harsh, so even if it is wrong somehow, you still need need to consult with an attorney. Gabriel L. Grasso is a criminal defense attorney who can review subpoenas to see if following one is in your best interest. Contact our office today to schedule an appointment.