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Can You Get Out of a Court Subpoena?

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By Christopher Coble, Esq. on November 09, 2017 10:56 AM

In order to present a case, attorneys need evidence. That evidence may take the form of witness testimony, documents, or physical evidence, and that evidence must be presented in court. But not all evidence is easily obtainable or voluntarily makes its way into court. And for those instances, courts have subpoena power.

A subpoena is a court order to produce documents or testify in court or other legal proceeding, and, as evidenced by its Latin translation "under penalty," those who defy valid subpoenas risk civil or criminal penalties. So is there any way to avoid complying with a subpoena?

Refusing the Request

There are two types of subpoena, and getting out of one may depend on which kind you get:

  1. A subpoena ad testificandum requires you to testify before a court or other legal authority.
  2. A subpoena duces tecum requires you to produce documents, materials, or other tangible evidence.

If you don't wish to appear in court or produce the requested evidence, there are a couple challenges you can make. Those challenges include the following:

  • The information sought by the subpoena is "privileged."
  • The evidence has been lost or destroyed (before receipt of the subpoena).
  • The request is overbroad or lacks specificity.
  • The request is unduly burdensome.
  • The request may violate your Fifth Amendment right against self-incrimination.

Attorneys don't like dragging people and evidence into court -- they don't often make the most compelling witnesses. Which means most subpoenas are normally only issued when necessary and when they are valid.

Paying the Price

Here is where we should point out that you should by no means ignore a subpoena -- failure to comply with a valid subpoena could expose you to civil or criminal contempt of court charges, including fines and imprisonment, perhaps until you produce the requested information or otherwise perform his or her legal obligation. So if you want to get out of a subpoena, you better have a good reason, and better yet, you should have the help of an experienced lawyer.

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