Subpoena Duces Tecum

Subpoena Duces Tecum in a Federal Criminal Case

A subpoena duces tecum (production of evidence) is a court order requiring the person subpoenaed to produce books, documents, or other records under their control at a specified time and place in a court hearing or a deposition.

Often, compliance can be achieved by mailing, sending records through e-mail, or providing the documents at a specified date without making an in-person appearance. Still, this arrangement must be made in advance.

Subpoena Duces Tecum in a Federal Criminal Case
A subpoena duces tecum is an order to someone to produce certain documents or evidence.

Duces tecum means "you shall bring with you." Thus, this is a subpoena for producing evidence requiring you to produce documents that can be examined in a trial or hearing. The burden of searching for evidence responsive to the subpoena is on the recipient. Notably, however, there are some limits.

To issue a subpoena duces tecum (SDT), law enforcement must have a reason to believe a crime has occurred. A court, after a motion, could quash a subpoena duces tecum if the agency did not have the power to issue the subpoena, the materials were not relevant to the investigation, and the items sought were not adequately described as required by the Fourth Amendment of the United States Constitution.

Simply put, a subpoena duces tecum has to comply with the restraints within the Fourth Amendment. For instance, federal courts have ruled that law enforcement agents can't arrive with a subpoena duces tecum and force someone to hand over all documents listed in the subpoena immediately.

Further, federal agents cannot search someone's property using the subpoena to locate evidence. They would need a search warrant to find items in the warrant and seize them immediately.  

Agents could obtain a subpoena without judicial intervention, but a search warrant requires authorization from a federal judge. While the law is broad for agents to draft a subpoena duces tecum to obtain evidence, they are not allowed to look for just general evidence of a crime.

Subpoena Duces Tecum – Quick Facts

There are some essential facts you should know about a subpoena duces tecum in federal criminal cases, such as the following:

  • The subpoena cannot be unreasonably broad or lack specific details that the recipient cannot determine the evidence sought.
  • A subpoena duces tecum cannot simply seek all documents from a recipient.
  • A court can quash or modify an unreasonable scope of the evidence sought in a subpoena duces tecum.
  • A court, grand jury, or another administrative agency can issue a subpoena duces tecum.
  • They are most commonly used in criminal cases.
  • They can be imposed by either prosecution or defense, where either side needs to prove their case with evidence in another location.
  • An SDT is often used to obtain records that are often difficult to get.
  • An SDT can also be requested to impeach the testimony of a witness by showing prior inconsistent statements.
  • A subpoena duces tecum requires somebody to produce certain documents or pieces of evidence at a hearing or trial in a criminal case.
  • It only demands that the requested physical evidence be produced.
  • It does not require the person to be a witness in a deposition or trial.
  • If someone fails to comply, they may be held in contempt of court, pay a fine, and be ordered to serve jail time.
  • If someone fails to appear in court as ordered, the judge could issue a bench warrant for their arrest.

What is the Purpose of a Subpoena Duces Tecum?

The primary purpose of a subpoena duces tecum is to compel the production of evidence relevant to the case at hand. For example, in a federal criminal case, it's a method that could ensure relevant evidence is made available to prove a case.

As noted, they can benefit either prosecutors or the defendant. For example, suppose you are under criminal investigation for a federal offense, and law enforcement agents have valid reasons to believe there is evidence on your computer hard drive. In that case, you could be served with a subpoena duces tecum ordering you to produce the computer for inspection.

Suppose you are charged with a crime, and someone else possesses video footage that could prove you were not even at the scene. In that case, your defense lawyer could obtain a subpoena duces tecum to force that person to deliver the evidence to the court.

How Does a Subpoena Duces Tecum Work?

A subpoena duces tecum is usually served by a law enforcement officer but could be done by certified mail.  Below are the general rules:

  • It must be served in person, OR
  • By mail, OR
  • By leaving at the recipient's residence or business,
  • The person serving it must provide them with a copy of the order,
  • For it to be valid, it must be properly served on the person it addresses,
  • It must also comply with any applicable federal rules of procedure.

Rule 17 of the Federal Rules of Criminal Procedure says it must state the court's name and the title of the proceeding and include the court's seal. Suppose the subpoena does not follow the proper format or is served incorrectly.  In that case, the recipient could choose to challenge it.

The recipient of the subpoena duces tecum must give the requested documents to the judge, who will then hold a hearing to determine if the person who asked for the material can obtain them. Some examples of documentation the subpoena could request include the following:

  • Emails,
  • Text messages,
  • Phone records,
  • Income tax returns,
  • Bank records,
  • Employment records, etc.

Notably, an SDT must provide specific information about the documents or evidence being sought, not a general fishing inquiry. Further, it must show why the requested records are essential to the case and state the recipient has the material in their possession.

Can You Object or Challenge an SDT?

Yes. You could object to or challenge a subpoena duces tecum on several grounds, such as the following:

  • The subpoena was not properly served on you, or
  • It does not comply with the applicable rules of procedure or
  • The attorney-client privilege protects the documentation or
  • The requested information is irrelevant, unduly burdensome, or unlikely to lead to admissible evidence.

To object, you must file a written objection within 14 days of being served with the subpoena, or you could forfeit your right to object.

Your federal criminal defense lawyer must have a good reason for requesting the information and show it is likely helpful. Once an SDT is served, the recipient must be allowed a reasonable amount of time to gather the requested material and bring it to court.

The Hedding Law Firm has offices in Los Angeles, California. We provide legal representation throughout the United States on federal criminal issues. Contact us for a free case evaluation and to discuss legal options.

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