Subpoenas: Compelling Your Appearance

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We all know that you have to show up in court if you are a party to a case being tried – i.e, if you are the defendant in a criminal case, or the plaintiff or defendant in a civil lawsuit. But if you are just a witness, do you also have to show up in court?

The answer is yes, if the judge or one of the attorneys thinks your testimony is important. The court will issue a subpoena, which is a document commanding your appearance in court to testify as a witness. In some cases, the subpoena will require you to appear for a deposition, or interview by one of the attorneys; you will be sworn to tell the truth, even though the interview takes place in a conference room instead of in court.

A subpoena that requires you to appear and give testimony is called a subpoena ad testificandum in a legal dictionary, but is often called a “witness subpoena” in normal usage. There is another type of subpoena – a subpoena duces tecum, or “subpoena to produce documents” – that requires you to bring documents or other evidence, but not to actually testify. Some subpoenas may require both your testimony and your documents.

A subpoena is normally issued by the court clerk at the request of one of the attorneys, although it must be signed by the judge.  In some jurisdictions, attorneys may issue subpoenas in their role as an officer of the court. If you are a willing witness, the subpoena may be delivered by mail or in person by one of the attorneys.  If you are not willing to appear (or supply evidence) without being ordered to, the subpoena will be personally delivered to you by a process server. Mailed subpoenas are normally done by registered mail, with the return receipt as evidence that the subpoena was served.

Once you have been served with the subpoena, you must appear (or deliver evidence) at the specified time and place. If you fail to show up, the court will send a marshal or sheriff’s deputy to place you under arrest and bring you to court or the deposition location.

What if you are the party requesting the appearance of a witness – how to do you get a subpoena issued? In most jurisdictions, your attorney will ask the court clerk to issue the subpoena. If you are representing yourself, you will need to make the request yourself; although court clerks are not permitted to offer legal advice, they will be able to explain how to request a subpoena and fill our the necessary form. Many courts and court systems that provide online forms include subpoena forms. The New Jersey Tax Court’s subpoena ad testificandum and subpoena duces tecum are typical. California’s Judicial Branch forms website has several different types of subpoenas, and allows you to select a “subpoena forms group” to collect them all; examples include a Civil Subpoena for Personal Appearance at Trial or Hearing, and a Deposition Subpoena for Personal Appearance.

Specific procedures and forms vary from court to court, but the subpoena itself will explain what is required of the witness. If you want to know more about subpoenas, your local court clerk can provide information, and many  court or court-related agency websites explain their local procedures.

Explanations of the subpoena process for criminal cases may often be found on the websites of District Attorneys or other prosecuting authorities. An example is in the Toombs Judicial Circuit, which covers  6 Georgia counties; there, the District Attorney’s website answers frequently asked questions about subpoenas, including what to do if you have a conflict. Also in Georgia, the Putnam County Solicitor General (the official who serves as prosecutor in State Court cases) even provides a Witness Advocate to help subpoenaed witnesses deal with employment or child care conflicts.

Explanations of the process for civil cases is most often found on court websites. An example of the process in small claims cases may be found on Georgia’s Augusta-Richmond County Civil and Magistrate Court website, which includes the fees for issuance and service of subpoenas, and the daily attendance and mileage fees that the requesting party must pay the subpoenaed witness.

Still in Georgia, the Gwinnett County Magistrate Court provides very detailed information about the two types of subpoenas, how to serve a subpoena, cost and payments, and a downloadable affidavit of service. The affidavit of service is the requesting party’s sworn statement that the subpoena was properly served.

Georgia is not the only state where court websites explain subpoenas. For examples, see New York’s Binghamton City Court, Kansas’s Ellis County Attorney’s Office (which even tells you how to dress for your court appearance), and Minnesota’s First Judicial District (which explains how parties representing themselves can request subpoenas).

If you need to contact your court clerk to ask about subpoenas, CourtReference has that information. If you need to check the court or District Attorney’s website for information about subpoenas, or if you want to download a subpoena form, CourtReference has the links. Check the Self-Help and Legal Research resource category for general information, and the Forms resource category for forms.

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