A subpoena duces tecum is a legal order requiring a person to produce documents or tangible evidence for use at a hearing or trial. The term “duces tecum” comes from the Latin phrase “you shall bring with you.”
A subpoena duces tecum may be issued by a court or another tribunal, such as a grand jury or administrative agency.
In other words, a subpoena duces tecum (SDT) is a legal court order that orders someone to appear in court during a hearing or trial and bring specific documents or records.
They are most commonly used in criminal cases. They can be imposed by either the prosecution or defense, where either needs to prove their case by presenting evidence stored in another location.
Simply put, a subpoena duces tecum requires someone to produce certain documents or pieces of evidence at a hearing or trial in a criminal case. As noted, an SDT can be used by either a prosecutor or the defendant to request proof or a witness.
Unlike a regular subpoena, which is served on a person to compel them to appear at a particular time and place, a subpoena duces tecum only demands that the requested physical evidence be produced.
A subpoena duces tecum does not require the person to be a witness in a deposition or trial—it only requires them to turn over the requested evidence.
However, a subpoena duces tecum can still be very powerful. If a person fails to comply with a subpoena duces tecum, they may be held in contempt of court and subject to severe penalties, including possible jail time. Our federal criminal defense attorneys will review this topic in more detail below.
What is the Purpose of a Subpoena Duces Tecum?
The purpose of a subpoena duces tecum is to compel the production of evidence that may be relevant to the matter at hand. In federal criminal cases, it is a way to ensure that relevant evidence that could prove one's case is made available and not withheld.
The subpoena duces tecum can benefit either prosecutors or the defendant. For example, if you are being investigated for a federal crime and investigators believe there is evidence on your computer, they may serve you with a subpoena duces tecum ordering you to produce the computer for inspection.
On the other hand, if you're charged with a crime and someone possesses documentation or physical proof that you were not present at the scene of the crime (e.g., video footage), your defense attorney may procure 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 it may also be done by certified mail or another method allowed by law.
It must be served in person, by mail, or by leaving at the individual's residence or business with someone of suitable age and discretion. The person serving the subpoena must also provide the individual with a copy of the order.
For a subpoena duces tecum to be valid, it must be properly served on the person it addresses.
It must also comply with any applicable rules of procedure. For example, in federal criminal cases, a subpoena duces tecum must comply with Rule 17 of the Federal Rules of Criminal Procedure, namely, among other things, it must “state the court's name and the title of the proceeding” and “include the seal of the court.”
If the subpoena fails to follow the proper format or is not served correctly, the recipient may choose to challenge it.
Anyone who receives a subpoena duces tecum must give the requested documents to the judge, who will hold a hearing to determine whether the person who asked for the material can obtain them.
Some examples of information and documentation that SDT could request include emails, text messages, phone records, income tax returns, pictures, bank records, employment records, and DNA evidence.
An SDT must provide information related to the specific documents or evidence sought by requesting party. It has to show why these materials are essential to the case and a statement that the witness has these materials in their possession.
What Are the Consequences of Not Complying?
If you are served with a subpoena duces tecum and do not comply, you may be held in contempt of court.
This severe offense can result in heavy fines and even jail time. In some cases, the court may issue a “bench warrant” for your arrest if you fail to appear in response to a subpoena. Ignoring a federal subpoena and contempt are defined under 18 U.S.C. 401 and 402.
How Can Someone Object to or Challenge It?
You can object to or challenge a subpoena duces tecum on several grounds. For example, you may object if the subpoena was not properly served on you or if it does not comply with the applicable rules of procedure.
Additionally, you may argue that the evidence demanded is protected by a privilege (e.g., attorney-client privilege) or that it is irrelevant, unduly burdensome, or otherwise not likely to lead to admissible evidence.
If you wish to object to a subpoena duces tecum, you must do so promptly and by the rules of procedure. In federal criminal cases, for example, you must file a written objection within 14 days of being served with the subpoena. Failing to file the objection on time may result in forfeiting your right to object.
Why Request an SDT?
To obtain pertinent records that would otherwise be difficult to get or to compel the cooperation of the party holding necessary information or, in some instances, withholding it.
An SDT can also be requested to impeach the testimony of a witness by showing prior inconsistent statements or to refresh the recollection of a witness by having them examine the documents before testifying.
Readers should note that for an SDT to be issued, there has to be probable cause to believe that the information sought is relevant and material to the case.
Your defense lawyer must have a good reason for requesting the information and show it is likely helpful. After the SDT is served, the witness has to be given a reasonable amount of time to gather the requested material and bring them to court.
Eisner Gorin LLP is based in Los Angeles, California. We provide legal representation throughout the United States on federal criminal matters. You can contact our law firm for an initial case evaluation by phone or you can use the contact form.