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How Parents Can Resist Federal Subpoenas for Minor Children’s Testimony

How Parents Can Resist Federal Subpoenas for Minor Children’s Testimony

Being served with a federal subpoena for your minor child to provide testimony can be an intimidating and stressful situation for any parent. As a parent, you naturally want to protect your child from legal entanglements. While complying with a federal subpoena is typically required by law, there are some steps parents can take to resist or fight back against subpoenas in certain circumstances.

Understand What a Federal Subpoena Entails

A federal subpoena is a legal order requiring someone to appear in federal court or provide documentation related to a federal case or investigation. Subpoenas are issued under the authority of the federal court system.When a federal subpoena names your minor child specifically, it means the party that requested the subpoena believes your child has information relevant to their federal legal matter. This could be a civil or criminal federal case.If your child is subpoenaed, they can be compelled to:

• Appear in federal court to provide testimony
• Answer questions under oath from attorneys or investigators
• Produce emails, text messages, social media posts or other documents related to the case

Failure to comply with a federal subpoena can potentially result in civil or criminal contempt of court charges against you as the parent or your child. So these types of subpoenas should not simply be ignored without exploring your legal options first.

Get Legal Help From an Attorney

If your child receives a federal subpoena, your first step should be to consult with a lawyer to understand how to respond. An attorney experienced in federal cases can advise you on the validity of the subpoena, review what information or testimony is being requested from your child, and discuss any grounds to fight or limit the subpoena.Potential reasons to fight a federal subpoena for your minor child can include:

• The information requested is protected by privacy rights or privileges
• Complying with the subpoena would cause undue burden or harm
• The subpoena seeks information irrelevant to the case
• Technical errors or defects with how the subpoena was issued

In some circumstances, an attorney may be able to negotiate with the party issuing the subpoena to narrow the scope or withdraw the subpoena altogether. If negotiations fail, they can represent you in filing a formal motion to quash or modify the subpoena.

File a Motion to Quash or Modify

If there seem to be valid grounds, your attorney can file a legal motion asking the federal court to quash (cancel) or modify the subpoena for your child. This motion should lay out the legal arguments for why the subpoena should be quashed or altered.Reasons the court may agree to quash or limit a subpoena can include:

• Requiring minor testimony would endanger the child’s welfare
• The information is obtainable from alternative sources
• The subpoena is overly broad, vague or burdensome
• Enforcing the subpoena would violate constitutional rights to privacy

To boost your chances of success, your motion should be specific regarding which parts of the subpoena are objectionable and why. Offering alternative options – like written testimony instead of in-person – can also help.Your attorney may need to negotiate with the issuing party to resolve disagreements over the subpoena or ultimately argue the motion in court for a judge to decide on.

Seek a Protective Order

If a motion to quash is not granted, another option is seeking a protective order from the judge overseeing the federal case.A protective order sets restrictions and safeguards on how information in the case – including a child’s testimony – can be used and accessed. It directs the other parties in the litigation to handle sensitive evidence confidentially.The court can customize the protective order to fit your child’s situation. Typical protections include:

• Blocking public disclosure of your child’s information
• Limiting who can be present for testimony
• Requiring redactions of identifying details from records
• Destroying sensitive evidence after the case concludes

Work with your lawyer to understand if a protective order might adequately safeguard your child from distress or harm while still meeting the needs of the federal case.

Consider an Objection During Testimony

If your efforts to quash or modify a federal subpoena fall short, you can still raise objections during your child’s actual testimony by asserting their Fifth Amendment right against self-incrimination or other constitutional privileges.

• Fifth Amendment: If there is any risk your child’s statements could implicate them in criminal conduct, their Fifth Amendment rights may provide grounds for refusing to answer those specific questions.
• Other privileges: Common law also recognizes certain testimonial privileges – like attorney-client privilege, doctor-patient privilege or clergy-penitent privilege – which could apply.

Have your lawyer assist you in lodging these objections on valid grounds during testimony. While the judge may still compel your child to respond, asserting these rights can help protect their interests.

Seek an Emergency Stay

If a federal judge orders your child to testify over your objections, you can seek an emergency stay of that order from an appeals court while you continue challenging the subpoena.Much like seeking an injunction, an emergency stay temporarily halts the lower court’s order. This can delay enforcement of the subpoena while your appeal is pending.The appeals judge will determine if an emergency stay is warranted based on factors like:

• Likelihood of winning the appeal
• Irreparable harm to your child without a stay
• Public interest considerations

Though stays are not guaranteed, it can be a last resort tactic using the appeals process to resist an problematic subpoena demanding minor testimony in the short term.

Prepare Your Child Emotionally

Throughout legal efforts to fight or limit a federal subpoena, also focus energy on supporting your child emotionally for the uncertainties ahead.Open communication, empathy and nurturing can help reduce any anxiety, anger or confusion they may feel about having to testify:

• Explain the situation honestly but gently, encouraging questions
• Respect their emotions and validate why this is upsetting
• Offer reassurances that their feelings are normal
• Highlight attorney efforts to protect their interests
• Provide extra support like counseling if signs of trauma emerge

Preparing them psychologically to handle the courtroom environment can also help empower them to get through testimony.While resisting federal subpoenas involves complex legal maneuvers, with compassionate support for your child the process can become more manageable for families. Don’t hesitate to lean on legal counsel and youth mental health resources.

Resources

Overview of federal subpoenas: https://www.law.cornell.edu/wex/subpoenaDetails on contempt of court penalties: https://www.law.cornell.edu/wex/contempt_of_courtTips on responding to a federal subpoena: https://www.nolo.com/legal-encyclopedia/responding-federal-subpoena.htmlExamples of motions to quash subpoenas: https://www.justice.gov/jm/civil-resource-manual-59-quashing-or-modifying-subpoenaDOJ guide on seeking protective orders: https://www.justice.gov/jm/criminal-resource-manual-165-guidance-obtaining-protective-order-regarding-discovery-materialsOverview of seeking a stay pending appeal: https://www.law.cornell.edu/wex/stay_pending_appeal