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People who receive a subpoena for a criminal matter often wonder if they can ignore the subpoena or refuse to testify. Neither is advisable.
Subpoenas are court orders that require a person to appear in court to testify or to bring something and should be taken seriously. Failure to comply can lead to jail time and fines. Here’s an overview of csubpoenas and some nationwide examples of what happened when a witness refused to testify or comply with a criminal subpoena.
But first, please watch this informative video by Board Certified Criminal Defense Attorney Benson Varghese.
A subpoena is a court order telling an individual to appear in court in person and testify. Similarly, a subpoena duces tecum is an order for a witness to bring something to court – such as documents, a child, or evidence. This is true in both state and federal courts.
Both in state and federal courts, grand juries are a group of individuals who determine if cases should be indicted or not. In the federal system, a grand jury is made up of 16-23 people. They are presented with cases to determine if probable cause exists to indict the case. In addition to voting on cases, grand juries have another important function: they can investigate offenses presented to them or initiate their own investigations.
There are generally two kinds of grand jury subpoenas. The first is a grand jury subpoena duces tecum. This orders a person (usually the Custodian of Records) to bring evidence (usually documents, but it can be any item including recordings or photographs) to the grand jury. The other type of subpoena is simply a grand jury subpoena which orders a person to appear before and testify before the grand jury. For this reason, this second type of subpoena is sometimes referred to as a subpoena ad testificandum.
The grand jury uses the subpoena power to gather evidence. Grand jurors typically issue subpoenas based on recommendations of federal prosecutors or federal agents. As explained below, it is very dangerous to ignore a grand jury subpoena, although there may be ways to quash the subpoena rendering it meaningless. As a result, anyone facing a subpoena should consider reaching out to an experienced attorney in Texas immediately.
Since a criminal subpoena is a court order, failing to comply can result in fines or time behind bars. In Texas, a judge has the discretion to fine a witness up to $500 in a felony case and $100 in a misdemeanor case for refusing to comply with a subpoena. Under Chapter 24 of the Texas Code of Criminal Procedure, the judge can also issue a warrant for the arrest of the witness and hold them in custody until the trial or proceeding has concluded.
Likewise, in federal court, a judge also has the authority to hold a witness in criminal contempt of court for disobeying a subpoena and hold them in custody until the end of the proceedings. Under Rule 42 of the Federal Rules of Criminal Procedure, the court can also bring formal contempt charges, which carry a punishment of up to six months confinement. Six months is the longest someone found in contempt can be jailed, unless he or she is convicted by a jury on the contempt matter. Rule 6(e)(7) allows the judge to hold someone in contempt for ignoring a grand jury subpoena.
It is important to understand that compliance with a subpoena is not voluntary. You must comply or face criminal contempt charges. If you are unwilling to testify before the grand jury for any reason, you may hire an attorney to challenge the subpoena. The attorney will file a motion to quash the subpoena. The judge will then hear reasons why the subpoena should be quashed. One reason that a subpoena may be quashed is that it is overly broad.
A look at some nationwide examples of people who have been jailed for refusing to testify or ignoring a criminal subpoena:
Generally speaking, a court can force you to testify if you are under subpoena with the threat of jail. However, there are a handful of legal reasons that could excuse someone from testifying, including:
If you have been subpoenaed to testify in a criminal matter and believe you have a valid reason not to comply, such as self-incrimination, you should contact an experienced criminal defense attorney as soon as possible to see about quashing the subpoena. A seasoned attorney can determine whether there are any grounds to quash the criminal subpoena or if there are legal reasons that can be asserted to keep you off the witness stand.
If you need a North Texas subpoena lawyer to help fight a criminal summons to testify, give us a call today at 817-203-2220.
By: Hakan A.
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