A quick guide to subpoenas in criminal cases
What are they?
A subpoena is a court order requiring the appearance of a witness (subpoena and certificate of appearance), or the production of documents or other evidence (subpoena duces tecum). It is an enforceable court order that requires a witness to appear and testify in court, or to produce documents or other evidence in their possession. Once properly served, a witness is required to appear in court or produce the documents required.
How are they issued?
In a criminal case, subpoenas can be issued by a judge, clerk of court, or prosecutor. Defense attorneys are not currently allowed to issue their own subpoenas in a criminal case (but can do so if the case is civil or administrative), and must get a judge or clerk of court to sign the subpoena for them. Most subpoenas are a standard 1-page court form stating the date, time and location that the witness must appear at.
When is service valid?
Service of a subpoena is governed by Wisconsin statute § 885.03, which first requires that the subpoena be served on a person or business inside of the State of Wisconsin. This means that subpoenas served out of State are not validly served.
Once inside the State of Wisconsin, a subpoena can be served in one of three ways. (1) giving a copy of the subpoena to the witness, (2) exhibiting and reading the subpoena to the witness (for the witness who refuses to take it), or (3) leaving a copy of the subpoena at the witness’ abode. Generally speaking, this means the person’s home, but can also include temporary residences, hotel rooms, or other place that the witness inhabits.
Let’s talk about mailed subpoenas. Despite repeated debacles, various prosecutors offices continue to mail subpoenas to witnesses. I frequently get calls about whether or not this is valid service, and the short answer is no. Mailing a subpoena is not “giving” a copy to the witness, nor is it “leaving a copy at the witness’s abode.” Moreover, there is explicit civil authority that, with the exception of small claims cases, service of civil process cannot occur by mail. Wis. Stat. § 801.11. While there is no controlling case on service of subpoenas by mail, it stands to reason that if an attorney can’t summon a witness in a personal injury case via mail, a party also can’t do so via mail in a criminal action.
What happens if I ignore it?
You go to jail. And stay there until you’ve complied. Sometimes you’ll be prosecuted for offenses related to skipping out on a subpoena and others you will be found in contempt of court and penalized. Don’t ignore a valid subpoena.
Can I challenge a subpoena?
Yes, but you need a good reason. Wisconsin statute 805.07(3) allows a person or business that has received a subpoena to challenge it if the terms are “unreasonable or oppressive.” Challenges will require those involved to seek a protective order in the circuit court, and appear in court to contest the subpoena. It must be done well in advance of the actual date of the subpoena.