What is a subpoena? Can you refuse to testify if subpoenaed?

what is a subpoena

Can you refuse a grand jury or criminal subpoena?

People who receive a subpoena for a criminal matter often wonder if they can ignore the subpoena or refuse to testify.

Neither is advisable.

Subpoenas are court orders that require a person to appear in court and should be taken seriously. Failure to comply can lead to jail time and fines. Here’s an overview of subpoenas and some nationwide examples of what happened when a witness refused to testify or comply with a criminal subpoena.

What is a subpoena?

A subpoena is a court order telling an individual to appear in court in person and testify. A subpoena duces tecum is an order for a witness to bring something, such as records. This is true in both state and federal courts.

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What is a grand jury subpoena?

Both in state and federal courts, grand juries are a group of individuals who determine if cases should be indicted or not. In the federal system, a grand jury is made up of 16 to 23 people. They are presented with cases to determine if probable cause exists to indict the case. In addition to voting on cases, grand juries have another important function: they can investigate offenses presented to them or initiate their own investigations.

There are generally two kinds of grand jury subpoenas. The first is a grand jury subpoena duces tecum. This orders a person (usually the Custodian of Records) to bring evidence (usually documents, but it can be any item including recordings or photographs) to the grand jury. The other type of subpoena is simply a grand jury subpoena which orders a person to appear before and testify before the grand jury. For this reason, this second type of subpoena is sometimes referred to as a subpoena ad testificandum. The grand jury uses the subpoena power to gather evidence. Grand jurors typically issue subpoenas based on recommendations of federal prosecutors or federal agents. As explained below, it is very dangerous to ignore a grand jury subpoena, although there may be ways to quash the subpoena rendering it meaningless.

What is a subpoena duces tecum?

A subpoena duces tecum is an order for a witness to bring something to court – such as documents, a child, or evidence.

What happens if you disobey a subpoena and refuse to testify?

ignoring a grand jury subpoenaSince the subpoena is a court order, failing to comply can result in fines or time behind bars. In Texas, a judge has the discretion to fine a witness up to $500 in a felony case and $100 in a misdemeanor case for refusing to comply with a subpoena. Under Chapter 24 of the Texas Code of Criminal Procedure, the judge can also issue a warrant for the arrest of the witness and hold them in custody until the trial or proceeding has concluded.

Likewise, in federal court, a judge also has the authority to hold a witness in criminal contempt of court for disobeying a subpoena and hold them in custody until the end of the proceedings. Under Rule 42 of the Federal Rules of Criminal Procedure, the court can also bring formal contempt charges, which carry a punishment of up to six months confinement. Six months is the longest someone found in contempt can be jailed, unless he or she is convicted by a jury on the contempt matter. Rule 6(e)(7) allows the judge to hold someone in contempt for ignoring a grand jury subpoena.

It is important to understand that compliance with a subpoena is not voluntary. You must comply or face criminal contempt charges. If you are unwilling to testify before the grand jury for any reason, you may hire an attorney to challenge the subpoena. The attorney will file a motion to quash the subpoena. The judge will then hear reasons why the subpoena should be quashed. One reason that a subpoena may be quashed is that it is overly broad.

Examples of the Consequences of Individuals Refusing to Testify

A look at some nationwide examples of people who have been jailed for refusing to testify:

  • A federal judge held a Chicago man in contempt of court and sentenced him to 60 days in jail in 2016 for refusing to obey a subpoena and testify at the trial of six leaders of the violent Hobos street gang. The witness reportedly refused to testify out of concern for the welfare of his family.
  • Barry Bond’s personal trainer, Greg Anderson, was held in contempt of court on multiple occasions for refusing to testify against the Giant’s slugger during grand jury proceedings and during Bond’s perjury trial. He spent more than a year in prison in 2006 and three weeks behind bars in 2011 for refusing to testify.
  • In Pennsylvania, a key witness in a 2015 Thanksgiving day murder was arrested after she ignored a subpoena ordering her to come to court to testify in the alleged killer’s trial. The witness was living in Maryland and had reportedly refused to return to Pennsylvania.
  • In Kansas, a jail inmate was found in contempt and sentenced to six months in jail for refusing to obey a subpoena and testify in a preliminary hearing in a murder case. The inmate, a key witness, refused to testify three times in one week in April 2017 and at one point told the court, “I want to be held in contempt.”
  • In California, a woman was held in contempt of court in June 2011 for refusing to testify in a murder case involving a defendant and victim who were reported gang members. The woman told the judge she would “rather sit in jail” than testify, prompting officials to take her away in handcuffs.
  • Susan McDougal, President Clinton’s Whitewater investment partner, served 18 months behind bars after she refused to answer prosecutors’ questions before a grand jury in 1996 about whether Clinton had knowledge of criminal wrongdoing in connection with the Whitewater resort development.

Are there any legal reasons under which I can refuse to testify?

Generally speaking, a court can force you to testify if you are under subpoena with the threat of jail. However, there are a handful of legal reasons that could excuse someone from testifying, including:

  • The testimony is incriminating. The Fifth Amendment of the U.S. Constitution gives you the right to avoid self-incrimination.
  • The testimony is privileged. Certain communications are considered privileged, including communications between a spouse, attorney, therapist or priest.
  • The witness is incompetent.
  • The subpoena was too broad, vague or not properly served.

Do I need an attorney if I received a criminal subpoena?

If you have been subpoenaed to testify in a criminal matter and believe you have a valid reason not to comply, such as self-incrimination, you should contact an experienced criminal defense attorney as soon as possible. A seasoned attorney can determine whether there are any grounds to quash the subpoena or if there are legal reasons that can be asserted to keep you off the witness stand.

If you need an attorney to help fight a criminal subpoena, give us a call at 817-203-2220. You can also contact us online:

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese