“Got a Subpoena. Someone Get Me Out of This!”

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

Busy Brenda, wealthy South Florida businesswoman, checked her mail one day and it looked like the usual garbage: credit card offers, coupons and horribly offensive letters from her alma mater requesting donations. She then came across a letter from the Clerk of Court and her Pomeranian immediately sensed a quizzical expression on her master's face. "What the heck is this all about, Fluffy, I've never been in trouble," Brenda pondered. She opened up the envelope and saw that it was a subpoena to testify in a criminal case, commanding her presence at a hearing at the Justice Building a week from Thursday at 10:00 a.m. Just then, she received a knock at the door and was handed the exact same subpoena. She noticed the case styling: "State of Florida v. Snake Sanders." Snake was one of Brenda's ex–boyfriends who she fell for years ago because of his bad boy image: leather jacket, motorcycle, Marlboro reds, the whole nine yards. He turned out to be just another loser and Brenda had discarded him many moons ago. Brenda felt that frankly, whatever Snake had gotten himself into was none of her business. More importantly, the date on which she was commanded to appear coincided with her trip to Tokyo to close yet another multi–million dollar business deal. Brenda hadn't associated with Snake for quite some time and felt that she had absolutely nothing to do with whatever Snake slithered himself into. Even though she should have called her lawyer, Brenda threw the subpoena away and closed the deal in Tokyo the following week. Back in the states, as she was driving her Ferrari from the airport back home, a police officer pulled her over for speeding. After running her name in the database, the officer noticed that there was a warrant for Busy Brenda's arrest. "Excuse me, ma'am, we have a bit of a problem here, please step out of that outrageous car" the officer said as he removed his sunglasses. "Do you have any idea how important I am!" Brenda screamed as she kicked and squirmed her way into the backseat of the squad car.

As Brenda now knows, subpoena is a Latin word meaning "under penalty." Since her subpoena required her to appear to discuss Snake's violent tendencies in relation to his pending assault charge, it is known as a "subpoena ad testificandum" or, in other words, "testify or be punished." Another type of subpoena called a "subpoena duces tecum" in layman's terms, means "produce these documents (typically business records) or be punished." Florida Rule of Civil Procedure 1.410 outlines the subpoena process in the state and subpoenas in federal criminal matters are governed by Rule 17 of the Federal Rules of Criminal Procedure. A subpoena in a civil matter is typically referred to as a "summons," but is no less serious––a judge may still hold you in contempt for failing to comply. The penalty for failing to appear when served with a subpoena in either a civil or criminal case in the state or federal system can range from a fine to substantial jail time. In Allen v. Florida, 739 So. 2d 166 (Fla. 3d DCA 1999), the Third District Court of Appeal upheld a six month jail sentence for failure to appear and testify in a criminal case. The determination of punishment can vary depending on the judge and type of legal matter at issue. Typically, judges will impose harsher penalties on someone who purposefully tries to throw a fork in the gears of an important criminal case than someone who fails to appear in a minor civil suit because they were deathly ill. Lastly, if you can't afford to show up, which is nothing to be embarrassed about with gas at $3 a gallon, fear not. Subpoenaed witnesses are typically reimbursed for travel expenses and may even receive a nominal attendance fee.

While the smart move is usually to show up at the time and place and perform your duty, subpoenas can be challenged. This can be done informally by contacting the prosecutor or other litigant who issued it to explain why your testimony or information is not necessary, that you're on your death bed, or that you feel there's been a clerical error. Sometimes, if you have a time conflict, you can re–schedule your appearance with the litigants (as Brenda should have). If this doesn't get you anywhere and you feel that your testimony will cause undue embarrassment or tribulation, you may move to quash, the fancy legal way of saying squash, the subpoena. Typically, this involves a hearing where your lawyer argues to the court why your oral or documentary evidence is irrelevant and not helpful to deciding the case at issue. As a general matter however, complying with a subpoena is part of being a good citizen. All too often, prosecutors are forced to drop cases against criminal defendants because witnesses do not do their duty and show up.

Even if you're as busy as Brenda or don't really care for the party your subpoena relates to, when you're issued one, it creates a legal obligation. Failure to comply with this obligation can lead to a fine, loss of privileges or even jail time. The most reasonable thing to do when you receive one is contact an experienced lawyer. At the very least, a good lawyer will explain your rights and duties relating to the subpoena, even if you choose not to challenge it.