15 Sep 23

Responding to Federal Subpoenas for Physical Evidence or DNA

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Last Updated on: 21st September 2023, 07:25 pm


Responding to Federal Subpoenas for Physical Evidence or DNA

Getting a subpoena can be scary. You may feel anxious about having to turn over private information or evidence to the government. This article will walk you through the basics of federal subpoenas, your rights and responsibilities when you get one, and some strategies for responding effectively. We’ll also look at a few real-world examples so you can get a feel for how this plays out in practice.

What is a federal subpoena?

A federal subpoena is a written order requiring you to produce documents, physical evidence, or other information relevant to a federal criminal investigation or trial. Subpoenas are used by federal agencies like the FBI, DEA, SEC, IRS, and more.

There are a few types of federal subpoenas:

  • Subpoena to testify – requires you to testify as a witness
  • Subpoena for documents or records – requires you to turn over documents
  • Subpoena duces tecum – requires you to produce physical evidence

We’ll focus here on subpoenas for physical evidence or DNA, also called subpoenas duces tecum. With this type of subpoena, the government demands that you turn over physical objects relevant to an investigation, like a weapon, drugs, clothing, electronics, bodily fluids, etc.

Do I have to comply with a subpoena?

In most cases, yes. If you are issued a valid federal subpoena, you are legally required to comply. But there are some exceptions, which we’ll get into shortly.

If you fail to comply with a federal subpoena, you could face civil or criminal contempt of court charges. That means fines, jail time, or both. So taking the subpoena seriously is important.

What are my rights when dealing with a subpoena?

Even though you are required to comply, you still have rights:

  • You can object to the subpoena if you have valid reasons (more on this below)
  • You can negotiate the scope of the subpoena (for example, narrow the date range for records requests)
  • You can request additional time to gather the subpoenaed evidence
  • You have the right to legal representation

Never ignore a federal subpoena. As soon as you receive one, contact a lawyer to help protect your rights. An experienced federal defense attorney can review the subpoena for issues and help craft your response strategy.

When can I object to a federal subpoena?

There are a few circumstances where you can legally object to a federal subpoena:

  • The subpoena seeks information protected by privilege – for example, confidential communication between a doctor and patient, or attorney and client. [1]
  • The subpoena imposes an undue burden or expense. For example, if the records request covers an unreasonably long period of time. [1]
  • The subpoena calls for you to travel more than 100 miles from where you live or work. [1]
  • You believe the subpoena seeks information that is irrelevant to the investigation.

If you want to fight the subpoena, you must file a motion to quash or modify it with the court that issued it. This has to be done quickly – within 14 days in most cases. [1]

An attorney can help you build the strongest case possible in your motion to quash. But even if the motion is denied, negotiating with the prosecutor may help narrow the scope of the subpoena so it’s less burdensome.

What if the subpoena seems too broad?

Prosecutors sometimes issue extremely broad subpoenas hoping to turn up anything that might be relevant. But an overbroad subpoena can become a “fishing expedition” – and you have the right to push back.

If the subpoena seems too broad, contact the prosecutor to see if you can negotiate limitations. For example, if the request seems to cover an unreasonably long time period, ask if you can narrow down the dates. Or if it asks for “any and all records”, see if you can get clarity on exactly what records they need. [4]

If you can’t reach an agreement, your attorney can file a motion to quash or modify the subpoena to protect you from overly broad demands.

Do I need a lawyer to help with a federal subpoena?

Yes, it’s highly recommended to have legal representation. Here’s why:

  • A lawyer can review the subpoena for issues and ensure your rights are protected.
  • They can negotiate with the prosecutor to limit overly broad requests.
  • They can file motions to quash or modify if needed.
  • They can ensure you meet deadlines and avoid contempt charges.
  • They can prepare you if you must testify or turn over sensitive material.

Don’t go it alone when dealing with a federal subpoena – the risks are too high. Federal defense attorneys regularly deal with subpoenas and understand the most effective response strategies.

What if I can’t afford a lawyer?

If you can’t afford an attorney, contact your local federal public defender’s office to see if you qualify for assistance. Federal public defenders represent people facing federal charges who can’t pay for a lawyer. Their services are free for those who qualify.

Some other options for finding low-cost or pro bono legal help include:

  • Your state bar association
  • Legal aid organizations
  • Law school clinics
  • ACLU
  • National Association of Criminal Defense Lawyers

Don’t let lack of funds stop you from asserting your rights when facing a federal subpoena. There are options for getting experienced legal help even if money is tight.

What’s the process for complying with a subpoena?

Once you and your attorney have determined that the subpoena is valid and must be complied with, here are the next steps:

  1. Negotiate the scope if needed. Work with the prosecutor to limit overly broad requests.
  2. Gather the physical evidence or DNA samples demanded.
  3. Review the material with your attorney before handing it over.
  4. Comply by the deadline – ask for an extension if you need more time.
  5. Organize evidence and label it clearly.
  6. Bring the evidence to the location specified on the subpoena.

Your attorney can help make sure you meet these requirements in a way that doesn’t compromise your rights. Having a lawyer review the evidence before handing it over is especially important.

What happens if I destroy or hide subpoenaed evidence?

Never destroy, hide, or alter subpoenaed evidence – that itself is a federal crime! Under 18 U.S. Code § 1503, it is illegal to corruptly influence, obstruct, or impede any official proceeding. Destroying or concealing subpoenaed documents or physical evidence can lead to obstruction of justice charges.

Real-World Examples

Let’s look at some real-world examples to understand how this plays out in practice:

DNA evidence

In a drug trafficking investigation, prosecutors subpoena DNA samples from a suspect to compare with evidence found in a car. The suspect’s attorney first verifies that the subpoena is valid and properly served. After confirming it is enforceable, the attorney negotiates to narrow the scope – agreeing to provide a cheek swab but refusing a blood draw as overly invasive. The suspect complies with the subpoena by providing the cheek swab DNA sample on the date specified.

Smartphone evidence

In an insider trading case, the SEC issues a subpoena to a stockbroker demanding “any and all records” on the broker’s iPhone. This seems overly broad. The broker’s lawyer negotiates with the SEC to limit the scope to text messages, emails, and phone logs between specific dates relevant to the investigation. The broker complies by bringing in the iPhone on the agreed date so the SEC can extract the specified data.

Financial records

In a tax fraud investigation, the IRS subpoenas 10 years of bank records from the target. The target’s accountant objects on relevance grounds, arguing that only 2 years of records are relevant based on the dates in the investigation. The accountant files a motion to modify the subpoena. The judge agrees that 10 years is overbroad and limits the scope to 2 years of bank records. The accountant complies by the new deadline.

Key Takeaways

Dealing with a federal subpoena can be scary, but knowing your rights is empowering. With an experienced attorney guiding you, you can respond in a way that meets your legal obligations while protecting sensitive information. Key tips include:

  • Consult a lawyer immediately
  • Understand your right to object
  • Negotiate overly broad requests
  • Meet deadlines to avoid penalties
  • Never destroy or hide subpoenaed evidence

With the right legal help, you can navigate federal subpoenas in a way that minimizes disruption while following the law.