Here, we will cover all types of Pennsylvania criminal subpoenas:
- Grand Jury Subpoenas,
- Trial Level Subpoenas,
- Preliminary Hearing Subpoenas and
- Subpoena to Produce Documents in a Pennsylvania criminal case.
Take away tip: Don’t sign for anything until you talk with us. If someone served you with a subpoena, you need to call us. Otherwise, you will be totally unprotected. You may talk your way into a whole lot of trouble including a criminal conviction for felonies, misdemeanors or pay large fines, even if you think you have nothing to hide. Don’t try to handle this on your own.
Someone served you with a subpoena to testify – now what?
First things first – State Subpoenas and State Grand Juries are different than Federal Subpoenas and Federal Grand Juries. Different rules guide Federal Courts and Federal Grand Juries. This article covers only to Pennsylvania criminal subpoenas and subpoenas for the Pennsylvania Grand Jury.
Types of Hearings
There are three different types of hearings where a court can grant a subpoena for a witness to appear and testify. The first is a hearing at a Magisterial District Justice’s office. The next is a hearing at the trial court or the Court of Common Pleas. And finally a hearing before a Grand Jury. A subpoena is a court order commanding you to appear before the court.
In Pennsylvania, there is no such thing as a subpoena to produce records in a criminal case in advance of a hearing. Some DA’s Offices improperly try to force or pressure folks to provide information before the hearing. You do not have to do so. You better consult with an attorney before you talk to any DA. In a criminal matter, a court can only issue a subpoena to appear and to bring the requested documents or records with you when you appear in court. If subpoenaed to appear before the Grand Jury, you have the absolute unquestioned right to an attorney, you have the right to have an attorney with you. And you better do so. A Pennsylvania Grand Jury looks into very serious matters.
Do I have to appear?
The answer is yes. If you do not appear as commanded by your subpoena, a judge can hold you in contempt of court if the judge finds your failure to appear to be willful. The court can issue a bench warrant to force compliance as well. A bench warrant grants the authority to arrest the subpoenaed party and bring them before the court. However, the court must find that the party issuing the subpoena personally served the witness before issuing a bench warrant or finding a person to be in contempt. Personal service means that the person delivered the subpoena directly into the witnesses hands.
Subpoenas sent by mail
If the subpoena was sent by ordinary first class mail that is not proper service. Regular first class mail doe not prove personal service. If the subpoena was sent by mail, there must a signed acknowledgement returned whereby the subpoenaed party acknowledges that they were served and waives the requirement of personal service. Be careful who signs for things sent to you. If you get your subpoena in the mail and return the acknowledgement or another person signs on your behalf, the court can issue a warrant even if personal service is not established.
Material Witness Subpoena
If you are a material witness to a trial, by application of either the Commonwealth or the defense attorney, the court may set bail for any material witness to appear. Bail may be monetary or the person may be held until he or she testifies. A material witness is one who’s testimony is absolutely essential for either the Commonwealth or the defense, In other words, the case cannot proceed without that witness. As part of the application, the application must set forth adequate cause for the court to concluded that you, the material witness, will fail to appear when required if not held in custody or released on bail.
Once the judge sets material witness bail and the witness satisfies the conditions of bail, the court may release the witness from jail. If the witness cannot satisfy the conditions of bail (paying the bail money and/or promising to appear), the court can continue to hold the witness in custody.
What does this mean in layman’s terms?
If you are a material witness to a case and you say that you will not comply with the subpoena and appear when required, the court can order you held in jail until such time as you testify or pay the monetary bail. So, if you face a material witness bail situation, you need a lawyer. We can help for sure.
Contempt for Failure to Appear for a Subpoena
What happens if the court finds you to be in contempt for failure to appear on a subpoena? If you commit contempt in open court, the judge could sentence you to jail. A fine is the only penalty for any other form of contempt. If you do not pay your fine, you could go to jail. You may be able to “purge” yourself out of jail by paying the fine. The maximum period of incarceration for failure to pay is three months. If the subpoena is for a hearing at a magisterial district justice’s office, the maximum fine is $100. Failure to pay the fine can result in confinement in jail for no more than 10 days.
Motions to Quash a Subpoena
What if you have a legitimate reason for not wanting to comply with the subpoena? A party to the case, a person served, or any person with a sufficient interest in the matter can file a motion to quash a subpoena. A motion to quash is asking the court to issue an order telling you you don’t have to comply with the subpoena. The court will often hold a hearing to determine if you have a valid reason (technical or legal) to quash (dismiss) the subpoena. A motion to quash can be filed for many reasons:
- the documents requested are privileged or confidential; the subpoena is vague;
- the sought after testimony would violate some privilege against testifying (e.g., spousal communication, priest-penetent, doctor-patient) or
- the required appearance would cause an undue burden.
- The court may quash a subpoena in order to protect a party or witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense.
Motion to Compel
If a party filed a motion to quash or if the served party otherwise fails to comply with bringing documents, the requesting party can file a motion to compel. A motion to compel usually occurs when the subpoena requests a party to provide certain documents or records. The subpoenaed party claims some privilege or confidentiality or burden, and the opposing party files a motion to compel. The motion to compel asks the judge to determine if the claimed privilege actually exists or if the subpoenaed party must turn over the documents.
Out of State Subpoenas
Even if you don’t live in Pennsylvania, a Pennsylvania court can still make steps to command you to appear and testify or provide documents. To order the appearance of an out of state witness, the party that wants that person there with or without documents must file a motion with the court. In the filing, the person filing that motion must provide the reasons why the witness and/or the documents are necessary through what is called an offer of proof. The Pennsylvania judge will hold a hearing. If the Pennsylvania court finds that the witness and/or documents are necessary, then it will issue a certification in an order saying as much. The certificate may include a recommendation that the witness be taken into custody and delivered to the jurisdiction to testify.
What happens next?
A local attorney in that other state where the witness is at then presents the Pennsylvania certification to a local judge. The local judge sets a hearing. At that local hearing, your lawyer can seek to quash (dismiss) the subpoena on legal or technical grounds. If your lawyer or you do not object to the out-of-state subpoena or the local judge does not quash it, then the local judge can order bail to insure you appear in Pennsylvania. Failure to comply with a subpoena under the Uniform Act has the same negative consequences as failing to comply with a trial subpoena.
Minimum Compliance of a Subpoena
Once you appear, what happens next? What is the bare minimum you can do without getting into trouble? Minimum compliance with a subpoena means that you appear at the time and place directed. You must also bring whatever is requested specifically on the subpoena. When it comes to requested records, you must only comply with the language of the subpoena, not the intent. Minimum compliance means that you only need to bring the exact records requested. Even if you know there are other records out there, you need only produce those explicitly listed on the subpoena.
Meetings before testimony
In most cases, the District Attorney will do something to make you think that you have to come to their office or meet with them in a pre-trial meeting to discuss the case and prepare you for testifying. A police officer or agent may want to talk to you before you testify. These meetings are not mandatory. There is no requirement that you comply. You should not do so without involving an attorney. If you do not wish to meet with the DA in advance, you don’t have to. There is no penalty if you do not. However, the DA may wish to discuss immunity with you as a testifying witness.
What is Immunity?
Only the Office fo the Pennsylvania Attorney General or the local county District Attorney can issue you immunity to testify. No defense attorney or court can do so. Sometimes when a witness refuses to testify and instead asserts his or her 5ht Amendment Rights, the DA will grant that witness immunity forcing them to testify. If the person having immunity refuses to do so, then the witness can be held in direct criminal contempt which means jail or a fine or both.
You would be a fool to try to negotiate immunity on your own. Don’t try it. Get an attorney. We can help.
When the court grants an immunity order, the Commonwealth cannot use the information you provided against you. This means both direct and indirect information. The only time the Commonwealth can use this information is in a prosecution for perjury or a contempt proceeding for failure to comply. It may also be used if it is otherwise admissible and the witness is not the criminal defendant.
Before granting someone immunity, the local DA or the Office of Pennsylvania Attorney General may wish to “preview” what you might say. They may offer you what is called a proffer or “queen for the day” letter. This is an intermediate step before immunity. This is very tricky. Don’t accept a proffer letter without a very experienced attorney looking it all over.
Whether it is a proffer or a grant of immunity, it is vital that it meets all of the legal requirements in order to protect you. A police officer or an agent of the government cannot grant you immunity. Only the Court can and only after a prosecutor signs a formal letter. Relying on oral promises, even from the elected DA, is unwise. Just ask Bill Cosby.
Receiving a subpoena in a criminal case is a very serious matter. You must get an attorney even if you have nothing to hide. Even if you are a victim of a crime, you should consult with an attorney. Defying the court can land you in prison and/or having to pay very large fines. Don’t try to handle it yourself.