Subpoena Vs. Warrant

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Both subpoenas and warrants are directives issued by the court or by officers of the court. But there are many differences between a subpoena and a warrant and they are not at all the same type of directive. Generally, subpoenas direct a witness to compel testimony or produce evidence in her control or custody, while warrants authorize the police to arrest a person or search her home, business or vehicle.

What Is a Subpoena?

A subpoena is a written command made by a judge or court officer in order to gather evidence for ongoing litigation. When someone is served with a subpoena, he is legally obligated to honor the subpoena and do what it asks or object to it.

The most common types of subpoena are:

  • Subpoena ad testificandum: a court summons to appear and give oral testimony for use at a hearing or trial.
  • Subpoena duces tecum*:* a court writ ordering someone or some entity to produce documents or other types of  tangible evidence – evidence you can touch – for use at a hearing or trial.

    Read More:
    How to Object to a Service of a Subpoena

Subpoena to Appear and Testify

The most common use of a subpoena is to order someone to appear and testify. While this is termed a subpoena ad testificandum, most people just call it a subpoena. In many states, attorneys can issue these subpoenas to witnesses they need to testify in a case. Subpoenas to appear are also issued for depositions before trial when the witness must give sworn testimony that is recorded and transcribed.

A court can issue subpoenas as well, calling key witnesses to come into court and testify. And when Congress holds hearings, it also has the power to subpoena witnesses to testify. A person who ignores a subpoena can be held in contempt of court and fined or imprisoned.

Subpoenas to Testify in California

In California, a subpoena to appear and testify is called a subpoena for personal appearance. The subpoena is a court form the attorney fills in with the time, date and place that the person must appear, and the name and contact information of the attorney seeking her appearance.

A subpoena to testify must be served on the witness. That is, it must be personally handed to the witness by an adult who is not a party to the action. If this type of service is not possible, the rules set out different alternate ways a party can be served.

Subpoena to Produce Documents or Evidence

A subpoena to produce documents or evidence, called a subpoena duces tecum, orders someone to collect and deliver documents or other physical evidence. The subpoena for documents or evidence orders the person to deliver the documents to the requesting party or directly to court.

Subpoenas duces tecum can be used in civil cases or criminal cases. In civil cases, the subpoenas usually seek documents, such as letters between the parties in a contract case, or all disclosure documents received in a real estate litigation. In criminal cases, these subpoenas often demand physical evidence.

SDTs in California Criminal Law

Subpoenas duces tecum are sometimes called SDTs by attorneys in California. In criminal cases, both the prosecutor and the defense attorney may use them to obtain documents or evidence. What types of evidence are commonly sought by using SDTs in criminal cases? They can include:

  • Financial records.
  • Blood test information.
  • Breathalyzer information.
  • DNA samples.
  • Tax returns.
  • Employee data and records.
  • Crime scene photographs.

An SDT must include a very specific description of the evidence sought, an explanation of why the material is relevant to the case and a statement that the person to whom it is addressed has the evidence in his possession or control.

What Is a Warrant?

One big difference between a subpoena and a warrant is that a subpoena is usually directed to a nonparty witness, while a warrant is usually directed to someone in law enforcement. A warrant is an order or writ issued by a court or a grand jury that gives a law enforcement agent a specific type of authorization.

A warrant authorizes a law enforcement agent to undertake an act that she ordinarily would not be permitted to do, like arrest someone or search a residence. The most common types of warrants issued are bench warrants, arrest warrants and search warrants.

Bench Warrants in California

In California, a bench warrant is the most common type of warrant issued. These warrants are usually issued by the court after a person misses a scheduled court date, like for a speeding ticket, or fails to respond to, or object to, a subpoena. It is essentially an order allowing law enforcement to immediately arrest the person named in the bench warrant.

A bench warrant can also be issued in California if someone fails to:

  • Pay a court fine.
  • Appear in court to face criminal charges or an indictment. 
  • Appear in court after receiving a subpoena.
  • Appear in court after being personally ordered to appear.
  • Appear in court after a police officer has issued a citation.

Police don't always rush out and try to find someone after a bench warrant is issued. But if the person named in the warrant is stopped for some other reason, she will be arrested under the bench warrant. A person arrested under a bench warrant can usually get out of jail on bail. If she isn't able to make bail, she will remain in jail until a court appearance is arranged.

If the person arrested is already out on bail, she forfeits the bail and the court will usually set a new, higher bail amount.

Arrest Warrants in California

An arrest warrant orders the police to arrest a person when law enforcement officials or a grand jury determines that there is probable cause to believe that that person has committed a crime. Probable cause means a reasonable belief something illegal has occurred.

The way this usually works in California, the police first conduct an investigation of a crime. If the investigation uncovers evidence resulting in probable cause that a particular person committed the crime, the police seek a formal arrest warrant from a judge. Law enforcement officers then seek out that person and arrest him.

To be valid in California, an arrest warrant must:

  • Include the reason for the probable cause.
  • Be issued based on police affidavits.
  • Be issued by a neutral judge or grand jury.
  • Describe the person to be arrested.

Note that where a police officer observes a felony occurring, an arrest warrant usually is not needed in order for the officer to arrest the suspect.

Search Warrants in California

Search warrants are issued to allow law enforcement to search a person's vehicle, office or residence. Although the warrant is issued on behalf of the prosecutor, a neutral, detached judge who is convinced the search is warranted, signs it. The judge can only sign off on a warrant if she believes that a crime has been committed and that evidence of that crime is likely to be found in the place described in the search warrant.

If, during the search, law enforcement officers locate the evidence described in the warrant, the search warrant authorizes the officers to seize that evidence.

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