15 Sep 23

Understanding Federal Subpoenas vs. Search Warrants and Interrogatories

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Last Updated on: 16th September 2023, 10:32 pm

Understanding Federal Subpoenas vs. Search Warrants and Interrogatories

When investigating potential wrongdoing, federal agents have several tools at their disposal to obtain evidence and information. Three common investigative tools are subpoenas, search warrants, and interrogatories. While they share some similarities, these legal devices have important differences that anyone dealing with a federal investigation should understand.

What is a Subpoena?

A subpoena is a writ or legal document issued by a court ordering a person or organization to testify, produce documents, or both. There are two main types of federal subpoenas: grand jury subpoenas – issued on behalf of federal grand juries during criminal investigations; and trial subpoenas – issued by federal courts overseeing criminal or civil proceedings. In either case, the subpoena compels the recipient to provide testimony or produce documents and records. Failure to comply may result in civil or criminal contempt of court charges.

Federal agencies such as the FBI, DEA, and SEC have the power to issue administrative subpoenas to aid investigations. However, these subpoenas don’t involve the courts directly. If the subpoena recipient refuses to comply, the agency must go to a federal court for an order enforcing compliance.

Subpoenas offer investigators access to testimony and records from third parties like banks, phone companies, internet providers, and more. They can be broad in scope but aren’t supposed to impose an unreasonable burden on the recipient.

Subpoena Process

For criminal grand jury subpoenas, a federal prosecutor drafts the subpoena for records or testimony needed for the investigation. The grand jury foreperson signs it, and the server delivers it to the recipient along with a check for witness fees and mileage. The subpoena recipient can challenge the subpoena by filing a motion to quash with the court. This asks the judge to cancel or modify the subpoena if it is overly broad, vague, irrelevant to the investigation, or otherwise improper.

If the recipient refuses to comply with a valid subpoena, the prosecutor can ask the court to hold them in contempt. The judge may order fines or jail time for contempt until the subpoena is obeyed.

What is a Search Warrant?

Search warrants authorize federal agents to enter specified locations to search for and seize evidence relevant to an investigation. The Fourth Amendment requires search warrants to be issued by a neutral judge or magistrate based on probable cause.

Probable cause means there is reasonable evidence to believe a crime was committed and that evidence exists at the place to be searched. The warrant must identify the specific area to be searched and the evidence being sought.

Law enforcement presents an affidavit explaining the grounds for probable cause to the judge. If satisfied, the judge issues a search warrant directing agents to search the location within a certain timeframe, usually 10 days or less.

Search Warrant Process

After obtaining a warrant, federal agents can enter the premises forcefully if needed and search for the items listed. The search must be conducted reasonably – agents cannot ransack the property or seize anything not covered by the warrant. The owner can be present but cannot interfere. Agents provide an inventory of items seized and leave a copy of the warrant and inventory at the site. Evidence obtained can be used in court against the owner or others implicated.

If agents want to seize evidence not listed in the original warrant, they must seek another warrant or prove the new evidence is relevant under the “plain view” exception to the warrant requirement.

What are Interrogatories?

Interrogatories are written questions served on another party during the evidence gathering phase of federal civil litigation. They allow the serving party to obtain information and admissions for use at trial. Federal Rule of Civil Procedure 33 governs interrogatories. Parties can serve interrogatories on any other party after litigation commences. Questions can ask for facts, apply law to facts, or inquire about the existence of documents.

Responses must be made under oath within 30 days. Objections are allowed but must be made in good faith. Parties have limited numbers of interrogatories they can serve – no more than 25 without court approval.

Interrogatory Process

The serving party drafts interrogatories requesting information to help prove their case or disprove the opponent’s case. Examples include: requesting factual details about the incident underlying the dispute; asking the other party to apply law to the facts; and seeking names of witnesses or experts to be called.

The responding party can object to improper questions but must otherwise respond fully and in writing under oath. Their attorney signs the response verifying it is complete and accurate. Evasive or incomplete answers can be challenged in court. If a party fails to respond adequately, the judge may order sanctions including contempt of court.

Key Differences Between These Investigative Tools

While subpoenas, search warrants, and interrogatories all provide information for legal cases, some key differences include:

    • Criminal vs. civil – Subpoenas and search warrants relate to criminal investigations, while interrogatories are used in civil cases.
    • Court involvement – Subpoenas and search warrants require court approval and involvement. Judges issue search warrants based on probable cause and can enforce subpoenas. Interrogatories don’t involve the courts directly.