Must I Obey A Subpoena? | Yermanlaw.com

By Bruce Yerman, Esq., Leave a Comment

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Don’t Disregard a Subpoena

You received a subpoena to testify as a witness in a criminal case in New York.

Should you disregard it? Probably not.

What’s a Subpoena?

A subpoena is a court order that directs you to:

Attend court to testify; or
Bring physical evidence to court (usually documents and/or data); or
Attend court and bring physical evidence.

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Reasons to Oppose a Subpoena

Perhaps you fear that your testimony would tend to prove that you committed a crime – you’re afraid that you might “incriminate” yourself. This is a very legitimate concern, even if you didn’t commit a crime.

There are many reasons, in addition to self-incrimination, why you might want to oppose a subpoena:

To avoid incriminating someone you care about.
To avoid incriminating someone you fear.
To avoid disclosing private information.
To avoid spending the time and effort necessary to comply.
To avoid missing work.
To avoid speaking in public.

Some of these reasons might provide a legal basis to oppose a subpoena. Some don’t.

Ignoring a Subpoena Is Risky

While your “privilege against self-incrimination” is a very important constitutional right, it doesn’t include the right to ignore a subpoena. You must attend court and assert the privilege while you’re seated in the witness stand.

You also might have the right to make a written “motion to quash” a subpoena. For example, on grounds that it’s “overly broad”, or that it seeks irrelevant evidence. However, moving to quash requires that you respond to the subpoena, rather than ignore it.

Ignoring a subpoena can have serious consequences.

For example, the party who subpoenas you could ask the Court for a “material witness order” – authorizing police to arrest you and bring you to court, where you might be held on bail to ensure your testimony. The Court could punish you for “criminal contempt” or “civil contempt”, resulting in jail and fines. The District Attorney could prosecute you for “criminal contempt in the second degree”, a crime punishable by up to one year in jail (up to four years in jail if you refuse to attend a grand jury proceeding).

Clearly, ignoring a subpoena is very risky.

Improperly Served Subpoenas

The only subpoena you may legally ignore is one that isn’t properly served. Even then, ignoring it is risky.

There are 5 ways you can be served with a subpoena:

“In-person service”: Delivery of the subpoena to you in person.
“Deliver and mail”: Delivery of the subpoena within New York: a) to a person of suitable age and discretion at your “actual place of business, dwelling place or usual place of abode”, and b) by mailing the subpoena to you at your known residence or at your actual place of business.
Delivery of the subpoena within New York to your designated agent. (If you don’t have a designated agent, disregard this method.)
“Nail and mail”: Delivery of the subpoena by a) affixing it to the door of your actual place of business, dwelling place or usual place of abode within New York, and b) by either mailing the subpoena to you at your last known residence or at your actual place of business.
“Alternate service”: Delivery in such manner as the court, upon motion without notice, directs, if service is impracticable under the other methods.

Let’s say you receive a subpoena mailed to your home, and you have no knowledge of a second copy being delivered to a person at your actual place of business, dwelling place or usual place of abode; and you have no knowledge of a second copy being affixed to the door of your actual place of business, dwelling place or usual place of abode.

Some prosecutors routinely engage in incomplete service, delivering subpoenas by mail only.

You might believe that you haven’t been properly served.

“7 Reasons Not to Speak with Police”

Although your belief might be reasonable, it also might be wrong.

For example, maybe someone at your home received the subpoena and forgot to tell you. Maybe someone who doesn’t like you at work received the subpoena and intentionally didn’t tell you. Maybe the subpoena fell off your door and someone threw it away. Maybe the Court authorized alternate service by publication of the subpoena in a newspaper, plus mailing it to you, and you didn’t see the published copy.

Ignoring a subpoena, because you have no knowledge of a second method of delivery, is risky.

Passive Resistance

Compliance with a properly served subpoena requires that you appear in court at the designated time, and that you truthfully answer questions under oath.

You’re not required to do anything beyond that.

For example, if you’re subpoenaed to testify by a prosecutor, you’re not required to meet with the prosecutor at the DA’s Office. You’re not required to speak with the prosecutor on the phone. You’re not required to rehearse your testimony before you get on the witness stand. You’re not required to confirm that you’ll be in court at the time designated in the subpoena.

Without knowing what your answers will be, the prosecutor might decide not to call you as a witness. If you don’t want to testify, this is a good outcome.