Is Your Subpoena Defective?

Is Your Subpoena Defective?

On July 6, 2021, the N.C. Court of Appeals ruled that a witness may be held in criminal contempt despite being served with a defective subpoena because she was additionally served by telephone subpoena. See State v. Gonzalez, ___ N.C. App. ___, 2021-NCCOA-309 (2021).

To appreciate the holding, one must understand that a subpoena may served in several ways. In this case, the witness was served both personally and by telephone through law enforcement.

State v. Gonzalez Facts

The State of North Carolina subpoenaed Ms. Gonzalez and her two minor daughters to testify as witnesses in a Criminal Superior Court trial. On May 9, 2018, law enforcement served all three subpoenas by telephone. On May 18, 2018, law enforcement also personally served all three subpoenas on Ms. Gonzalez in her capacity as a witness and mother of two minors, although those subpoenas contained only one side of the double-sided form. On May 21, 2018, neither Ms. Gonzalez nor her two minor daughters appeared at the trial. The trial court then issued her an Order to Show Cause, directing her to appear and show cause why she should not be held in criminal contempt for disobeying the subpoena. After hearing, Ms. Gonzalez was held in criminal contempt and ordered to be jailed for thirty days.

The Court of Appeals affirmed the contempt order, analyzing two arguments.

First, Ms. Gonzalez contended she was not served a lawful subpoena under Rule 45 of the N.C. Rules of Civil Procedure. The Rule provides that every subpoena “shall state all of the following . . . [listing eight protections of a person subject to a subpoena] and [listing five duties in responding to a subpoena] . . . .,” all contained on the back side of the subpoena. Although Ms. Gonzalez was not personally served with a subpoena listing those protections and duties, the Court dismissed this argument by noting she was first served by telephone, a method allowed in criminal cases. See N.C. Gen. Stat. § 8-59. If a witness is served by telephone, neither an Order to Show Cause nor an Order for Arrest shall issue until that witness is personally served with a written subpoena. See id. Nevertheless, the Court reasoned personal service occurred despite the absence of the aforementioned protections and duties.

Second, Ms. Gonzalez contended the contempt order failed to indicate she was guilty beyond a reasonable doubt (as a box was unchecked). The Court rejected this argument as the trial court announced its findings and the standard used in open court.

While Gonzalez may await further appellate review, one should appreciate that important duties, as well as protections, arise from the use of subpoenas.

This blog is designed to comment upon basic legal issues and is not an exhaustive overview of the law. It is intended for educational purposes only and constitutes neither legal advice nor an attorney-client relationship. Contact the skilled criminal law, family law, and civil litigation attorneys at Davis & Davis, Attorneys at Law, P.C., including Board-Certified Specialists in Federal and State Criminal Law and Family Law, to schedule a consultation today.