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Criminal procedure


A subpoena in a criminal prosecution or case is an order from a court for the person served with the subpoena to (1) appear in court or at another designated place to give testimony under oath (also known as a witness subpoena, a subpoena to testify at a hearing or trial in a criminal case, or a witness summons) in a deposition, hearing, or trial; or (2) to produce documents and other tangible things for copying and inspection (a subpoena duces tecum).

Subpoenas are used in criminal prosecutions to order a witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. A subpoena may also require the person subpoenaed or noticed to appear and give sworn testimony at a deposition if the judge determines there is a good chance the witness will not be available to testify at trial—often due to concerns regarding the witness’s age, health, custody status, deportation status, or deadly threats made against the witness. A person who fails or refuses to comply with a subpoena may be held in contempt of court and face fines, penalties, and imprisonment for not complying with the court order.

A person or entity who is served with a subpoena for testimony or for the production of documents and tangible things usually has a short time period in which to make any objections to the court order (subpoena) to provide testimony or documents—including asserting applicable privileges and objecting to the time, place, and scope of the testimony or document requests—often through a motion to quash or modify the subpoena. If the person or entity served with the subpoena fails to timely assert such privileges and objections, these matters are usually waived and the testimony must be given and the documents produced without regard to such privileges and objections.

The procedure, scope, and potential objections for a witness subpoena or a subpoena for documents and other tangible items in a criminal prosecution are generally governed by the state’s rules of criminal procedure, or the Federal Rules of Criminal Procedure in federal prosecutions.

In Texas, a subpoena in a criminal case is a court order that compels a person to either provide testimony under oath or produce documents and tangible items for examination. This legal instrument can be issued to ensure that a witness appears in court, at a deposition, or that specific evidence is brought before the court. If a witness is unlikely to be available for trial due to various reasons such as health or safety concerns, a subpoena may be used to secure their deposition testimony. Non-compliance with a subpoena can result in contempt of court, which carries consequences such as fines, penalties, or imprisonment. Recipients of subpoenas have a limited time to object to the subpoena by asserting privileges or challenging the terms of the subpoena through a motion to quash or modify. Failure to timely object typically results in a waiver of these rights, and the individual must comply with the subpoena. The rules governing subpoenas in Texas are outlined in the Texas Code of Criminal Procedure, while federal cases are governed by the Federal Rules of Criminal Procedure.

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