As criminal defense attorneys in Colorado, we are often asked about witness related issues. Our most common question - "I'm a witness for a domestic violence case, do I have to testify?" The vague and simple answer is, it depends.
This answer becomes "yes" if you are personally served a subpoena. A subpoena is a court order that compels you to be at a certain place at a particular date and time, as listed on the subpoena. Below is a list of the numerous elements required for a subpoena to be valid:
- States the court from which it is issued
- States the title of the action, the court in which it is pending, and the case number
- Commands each person to whom it is directed to do a specific action at a specified time and place (testify, produce materials, etc.)
- Identifies the party (and the party's attorney, if applicable) who is serving the subpoena
- Identifies names, addresses, phone numbers, and email addresses of attorneys for each party (or the party themselves if no attorney is used)
- States the method for recording the testimony if the subpoena commands attendance at a deposition or sets out specific text if production of records or a tangible thing is sought
In addition to these elements, a subpoena also requires hand delivery of a copy to the named person, as ordered by the court. The subpoena must be served to you by any person who is at least 18 years old and not a party to the subpoena. This service is also considered valid if the person named in the subpoena has signed a written acknowledgement or waiver of service.
Given this information, if a valid subpoena is served to you, you are required by law to testify. If you choose to not comply with the subpoena, either the state or defense attorney may file a contempt citation against you - this means they are asking the judge to punish you for violating a court order. However, this does not happen often. Prosecutors do not have much of a desire to chase down and punish witnesses.
If the state or defense attorney did choose to file a contempt citation against you, they must file a motion saying what order you allegedly violated and how. There is then a hearing to "show cause" - this hearing would allow you to explain why you should not be held in contempt. If you were to not show up for this hearing, then the court could issue a warrant for your arrest. At this point, or after the hearing if the judge did not agree with you, you may be charged with contempt of court.
As previously stated, this is rare. But what would a charge of contempt of court look like? There are two types of contempt charges, civil and criminal. The goal of a civil contempt charge is to persuade the named person to do the action required by the original order. The goal of a criminal contempt charge is to punish the person for not complying with the court and to preserve the court's authority. Ignoring a subpoena would likely be classified as civil contempt of court.
As expected, the punishments for these crimes vary. Because civil contempt is mainly used to convince someone to comply with the court, the punishments try to benefit those that were wronged. Given this, civil contempt sanctions usually end when the party complies with the court's original order or when the underlying case is resolved. The charge of criminal contempt is far more severe. This becomes a separate charge from the underlying case and those accused get the constitutional rights guaranteed to all criminal defendants.
Testifying as a witness, or even being subpoenaed, can make for a very confusing and scary time. If you have questions or feel you may need representation, please call WeedenLaw today. We have 10+ years of experience in this area and are happy to share our expertise with you. Call today for a free consultation with one of our attorneys.