How Federal Subpoenas Are Different in Civil vs. Criminal Cases

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Last Updated on: 2nd October 2023, 05:52 pm

How Federal Subpoenas Are Different in Civil vs. Criminal Cases

When it comes to the legal system, there are some big differences between civil and criminal cases. One of those differences is how subpoenas work. Subpoenas are official demands for someone to provide testimony or documents related to a case. Both civil and criminal cases use subpoenas, but there are some key ways they differ.

What is a Subpoena?

First, let’s cover the basics. A subpoena is a writ or order commanding someone to appear in court or provide testimony or documents. Subpoenas are used to obtain evidence and make people cooperate with legal proceedings. There are two main types:

• Subpoena ad testificandum – Requires a person to testify as a witness
• Subpoena duces tecum – Requires a person or organization to provide documents or other evidence

Subpoenas are issued under the court’s authority. Not complying can lead to civil or criminal contempt of court charges. Subpoenas can be challenged or quashed in certain circumstances.

Key Differences in Civil vs. Criminal Subpoenas

While subpoenas serve a similar purpose in civil and criminal cases, there are some important differences:

Who Can Issue Subpoenas

• In civil cases, attorneys can issue subpoenas themselves as officers of the court.
• But in criminal cases, subpoenas are issued by the clerk of court or a judge. Prosecutors have to make a formal request and get a blank subpoena from the court.

Geographic Scope

• Civil subpoenas typically only apply within the district or within 100 miles of the trial location.
• Criminal subpoenas have no geographic limit and can compel attendance from any location.

Service of Subpoenas

• In civil cases, subpoenas are usually served by a process server or sheriff’s deputy.
• But in criminal cases, they are served by U.S. Marshals or FBI agents.

Failure to Comply

• Failing to comply with a civil subpoena can lead to civil contempt charges.
• But not complying with a criminal subpoena may result in criminal contempt charges, which can mean jail time.

Challenging Subpoenas

• It is generally easier to fight or change a subpoena in civil cases.
• Criminal subpoenas are harder to challenge unless constitutional rights are at stake.

Pre-Trial Discovery

• Civil cases involve extensive pre-trial information exchange known as discovery.
• But criminal discovery is much more limited to protect identities and prevent witness intimidation.

When Are Criminal Subpoenas Used?

In federal criminal cases, prosecutors routinely use subpoenas to obtain evidence for trial. They may subpoena documents, communications records, financial information, and expert testimony. Some common uses include:

• Getting medical records, phone records, employment records, bank records, etc. to establish facts or timelines.
• Obtaining documents or electronic records relevant to the alleged crime.
• Making expert witnesses testify about things like forensic evidence.
• Requiring the defendant to attend the trial or hearings.

Federal grand juries investigating crimes can also issue subpoenas to help decide if charges should be brought. And criminal subpoenas are sometimes used in internal investigations by government agencies like the SEC or FBI.

Responding to a Criminal Subpoena

If you get a criminal subpoena, you should carefully review the documents or testimony required. Talk to a lawyer to understand your rights and responsibilities. Some key steps include:

• Confirm the subpoena is valid and issued by the court.
• Meet with a lawyer to discuss your options.
• Try to negotiate the scope of documents or testimony if possible.
• Claim any privileges or constitutional rights that apply.
• Ask the court to quash or change the subpoena if there are grounds.
• If no legal defenses apply, fully comply with the subpoena.

Keep in mind that not complying with a criminal subpoena can lead to contempt charges and even arrest. So take any subpoena seriously and talk to a lawyer early on.

Subpoena vs. Search Warrant

Subpoenas and search warrants both aim to collect information for legal cases, but work differently:

• Subpoenas request information while search warrants compel it.
• Subpoenas involve legal demands while search warrants permit force.
• You can challenge a subpoena but must comply with a warrant.
• Warrants allow immediate seizure but subpoenas set future deadlines.

So subpoenas give the recipient advance notice and a chance to object. But search warrants are executed on the spot by law enforcement. Both are powerful tools for prosecutors in criminal cases.

Subpoena vs. Summons

While they sound similar, subpoenas and summons are different:

• A subpoena demands testimony or documents as evidence.
• A summons orders a defendant to appear in court.
• Subpoenas have geographic restrictions.
• Summonses make defendants attend proceedings.

Subpoenas target witnesses and evidence while summonses aim to ensure the defendant shows up at hearings and trial.

Key Takeaways

• Criminal subpoenas come from the court while civil ones are from attorneys.
• Criminal subpoenas have wider geographic scope.
• Not complying with criminal subpoenas brings harsher penalties.
• It’s harder to fight criminal subpoenas.
• Criminal cases involve much less pre-trial discovery.
• Prosecutors routinely use subpoenas to build criminal cases.

So while subpoenas exist in both civil and criminal cases, criminal subpoenas have more power and fewer limits. Understanding these key differences is important for anyone receiving a subpoena demand.