Do you want out of a subpoena for personal reasons? Well, this article reveals top valid reasons to get out of a subpoena.
An attorney needs evidence to present a case in court, including documents, sourced journals, physical evidence, or witness testimony. However, the evidence may not be voluntary or easily obtainable, in which case the court uses subpoena power.
A subpoena is a court order to testify in court or produce documents or any other legal proceeding. This is evidenced by its Latin translation “under penalty”. If you defy valid subpoenas, you risk criminal or civil penalties.
Can you get out of a court subpoena?
You can get out of a court subpoena. However, it may be a smarter move to show up in court on the specified date to perform your witness duty. You could informally contact the prosecutor or other litigant responsible for the subpoena to explain why your testimony is not necessary.
Your explanation needs to be valid. Perhaps, a clerical error, death bed reason, or even a time conflict. If it is a time problem, reschedule your appearance with the litigants.
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If you believe that your testimony will result in tribulation or undue embarrassment, you can move to quash (or squash) the subpoena. This will involve a court hearing where your lawyer argues why your documentary (subpoena duces tecum) or oral (subpoena ad testificandum) evidence is not helpful or relevant to deciding the case.
Generally, however, complying with a subpoena makes you a good citizen. In extreme cases, prosecutors get to drop cases against criminal defendants due to witnesses not showing up or performing their duty.
Valid reasons to get out of a subpoena
The grounds for challenging a subpoena to refuse to testify in court as a witness or other reasons may be categorized into 3 issues:
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Subpoena service issue
A subpoena must be validly served to compel testimony. A valid service will depend on the nature of the subpoena, that is, whether the subpoena is administrative or judicial. Regarding a judicial subpoena, it will depend on the jurisdiction in which the subpoena is served.
Federal agencies such as the U.S. Securities and Exchange Commission (SEC) allow valid subpoena service by virtually any means, including in-person, by delivery to the residence or office of the subpoenaed party, by fax, mail, or any forgoing means on the legal counsel of the subpoenaed party.
Offices of the state attorney general often also allow subpoena service by various means. However, judicial subpoena services tend to have restrictions.
In-person service is also required for both civil and criminal proceedings in many federal and state jurisdictions.
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You may not be required to testify if you were not validly served a subpoena. However, you must not ignore the subpoena. Engage legal counsel to file a motion to quash in the court.
Have in mind that the party or agency that issued the subpoena will attempt to serve it again using any authorized means.
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Jurisdictional issues
Motion to quash an oral or documentary subpoena can also be justified by jurisdictional issues. A jurisdictional issue occurs when the court issuing a subpoena does not have jurisdiction over the issue, or subpoena power of the agency or court does not extend to authorize service of the subpoena for your testimony.
You can file a motion to quash if you have grounds to challenge and get out of a subpoena due to lack of jurisdiction. You could also engage in a “meet and confer” process with the agency issuing the subpoena.
Note that the litigating party or investigating agency will not simply give up efforts to get you to testify.
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Scope issues
Substantive issues can provide a ground to get out of subpoena. You can assert substantive challenges in the form of engaging in negotiations with litigating entity or motion to quash to avoid or minimize your obligation to testify.
The grounds for challenging and getting out of a subpoena to testify will depend on the nature of the subpoena, that is, judicial or administrative, as well as the relevant jurisdictional law.
That said, substantial grounds for challenging a subpoena will include:
- Requiring privileged information. It is not mandatory to provide any information protected by the Fifth Amendment privilege against self-incrimination or attorney-client privilege when testifying to a subpoena. Other than during your testimony, it is also possible to assert these privileges (the Fifth Amendment and attorney-client privilege) in advance to limit the questions or avoid appearing in court.
- Overbreadth subpoena. In light of the litigation or investigation, a subpoena cannot be overly broad. With a common reference to fishing expeditions, a subpoena is not a tool for asking open-ended questions until actionable information is revealed. If your subpoena does not require information reasonably related to the litigation or investigation, you may have the grounds to challenge and get out of it on an overbreadth basis.
- Not sufficiently specific as to the questions to be asked. A subpoena must be sufficiently specific as to the information being sought. You have the right to know how you should prepare to testify in response to a subpoena. If the subpoena is insufficiently specific as to the questions to be asked, you may be able to challenge it.
- Undue burden from the subpoena. You can challenge and get out of a subpoena if it presents an undue burden for the recipient. This is more commonly used as a defense to subpoenas requesting documents (duces tecum) rather than testimony (ad testificandum). Nonetheless, it is applicable in appropriate cases to file a motion to quash a subpoena to testify. Subpoenas that require both testimony and document can also often be challenged on grounds that they present an undue burden.
Final thoughts
To get out of a subpoena, you want a good reason, and better yet, the help of an experienced lawyer. You should not ignore a valid subpoena as failure to comply can result in a civil or criminal contempt of court charges that includes fines and imprisonment.
