Have you received a subpoena to testify as a witness in a criminal trial or grand jury proceeding? If so, you probably have many questions regarding the law and your rights. For example, can you ignore the subpoena? If not, what are the penalties if you refuse to show up in court and testify? And can you be forced to testify if what you say might incriminate you?
Here is a brief explanation of what subpoenas are and how you may be able to avoid testifying under certain circumstances. Keep in mind that this is simply general information and not specific legal advice for you. As with any legal matter, you should speak with a qualified Collin County criminal defense lawyer if you require assistance with a specific problem.
What Is a Subpoena?
A subpoena is basically a court order directing the recipient to appear before a court for a specific purpose. That purpose is usually to testify at a criminal trial or before a grand jury, although there are other kinds of legal proceedings where subpoenas may be used, such as a coroner’s inquest. The subpoena itself is normally issued to a peace officer, such as the local sheriff, who serves it on the recipient.
A Texas court may also issue what is known as a “subpoena duces tecum.” This is an order directing the recipient to bring a particular “instrument of writing or other thing desired as evidence” to the court for use in a criminal proceeding. For example, a subpoena duces tecum may direct you to bring certain records to the court which are relevant to a particular trial.
What Happens If I Ignore a Subpoena in Texas?
A subpoena is not a polite request. It is a legally enforceable court order requiring the recipient appear in court–or bring the requested evidence–and testify at a given date and time. If you fail to obey a subpoena, a judge can fine you up to $500 if the underlying case involves a felony, or up to $100 if it is a misdemeanor trial.
The fine itself is conditional. If you later appear in court and “show cause”–i.e., provide the judge with a valid explanation of your prior failure to obey the subpoena–the court may reduce or waive the fine. Also, if you show up and testify after initially disobeying the subpoena, the judge has the discretion to reduce or waive your fine, although you may be still be assessed court costs.
Can I Go to Jail for Disobeying a Subpoena?
In a Texas state court, a judge may issue an order known as a writ of attachment, which orders a police officer to physically bring you to court in order to comply with a subpoena. It is effectively an arrest warrant. And in theory, the judge could order you held in custody until the underlying criminal trial is completed.
With respect to federal court, disobeying a subpoena is considered an act of “criminal contempt.” This means you can be separately charged and tried for refusing to appear or testify in the original case. If convicted–and you are entitled to a jury trial for criminal contempt–the judge can send you to jail for up to six months.
How Can I Fight a Subpoena?
While you cannot simply ignore a subpoena without facing the legal consequences outlined above, there are situations where you may fight the subpoena. The two most common examples of this are cases where the witness might incriminate themselves through their testimony, or scenarios where the testimony itself is subject to privilege.
The Fifth Amendment to the U.S. Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” So even if you are under subpoena, you can never be compelled to testify when doing so might place you in legal jeopardy. Along similar lines, there are certain types of legal communications that are privileged–i.e., protected from compelled testimony. For instance, spouses cannot be forced to testify against one another.
If you have received a subpoena yourself and believe you may be protected by constitutional or other legal privilege, you should speak with an Collin County criminal defense lawyer. Call Rosenthal & Wadas at 972-369-0577 today if you need immediate legal advice.