Nobody likes to be called to court. It can be downright annoying if you have to make time for a trip to court when you aren't even a party to a lawsuit so have nothing to lose or gain. But then again, it's the witnesses with nothing to lose or gain who can impact the outcome of a civil or criminal case. If you are served with a court subpoena, you may be able to get out of it in certain circumstances. But don't count on it.
Subpoenas Are Court Orders
If someone hands you a subpoena to appear in court, treat the document very carefully. Although it was probably written by an attorney, subpoenas are court orders and an important part of the judicial process. Subpoenas either order you to show up in court and testify in a particular case, or else they order you to produce documents relevant to a particular case that are in your possession and control. Some subpoenas do both.
What happens if you just ignore a subpoena? If you were properly served with the subpoena and you do not file a motion to quash, you can be held in contempt of court. That can mean a big fine or time in jail. You can also be held in contempt if you appear and refuse to testify unless some privilege applies.
Service of a Subpoena
In order to be valid and binding, a subpoena must be served on you. This means, effectively, that some adult must personally hand it to you or read it to you, then file a paper in court under oath about when and where you were served.
You may get emailed a subpoena, or receive one in the mail. But unless you respond to the people sending these, the subpoena is not binding. And you are not under a legal obligation to respond. However, if someone shows up at your door and hands the subpoena to you, you are officially served.
Read More: How to Object to a Service of a Subpoena
Motion to Quash the Subpoena
"Quash" is a funny legal term that sounds as if the subpoena will be squeezed out of existence. That's not far from the truth. If you have a valid reason to challenge the subpoena, and the court agrees with you, poof! The binding nature of the subpoena disappears.
The reasons a court will quash a subpoena for documents include practical matters, like the request is unreasonably burdensome, overly broad or not sufficiently specific. You can also object to a request for documents if you lost or destroyed them before you got the subpoena. States often limit the distance you have to travel for a subpoena (to 100 or 150 miles, for example), and the court will quash a subpoena that exceeds that distance.
You may be able to quash a subpoena for your testimony if the information you are supposed to testify about is privileged. The law that privacy is essential in some types of relationships, including lawyer/client and priest/penitent, does not allow questioning about those privileged matters. There is also a right (under the Fifth Amendment) to refuse to answer questions if they might incriminate you. While these privileges may give the court grounds to quash the subpoena, they also would provide a valid reason for you to refuse to answer questions if you do go to court.
- The information sought by the subpoena is "privileged."
- The evidence has been lost or destroyed (before receipt of the subpoena).
- The request is overbroad or lacks specificity.
- The request is unduly burdensome.
- The request may violate your Fifth Amendment right against self-incrimination.
You can get out of a court subpoena by filing a motion to quash the subpoena with the court. To file the motion, however, you must have a very good reason that will convince the court that you should not have to appear and testify.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.