How You Can (and Can't) Get Out of a Subpoena

Colorado courts can force you to testify

In March 2018, an investigator was held in contempt of court and jailed for refusing to testify during an appeal for the death sentence of a Colorado man, because of her personal opposition to the death penalty. 

A subpoena, according to Colorado criminal defense attorney Iris Eytan, is “a witness summons that is issued by a court.” It’s an official court order requested by an attorney, compelling someone to do something. There are two kinds of subpoena:

  1. subpoena ad testificandum: a request for witness testimony
  2. subpoena duces tecum: a request to produce documents

An attorney can subpoena someone to obtain information relevant to their criminal or civil case. Eytan says a subpoena will usually be signed by an attorney, demanding that a witness come to court at the address and date listed. Both kinds of subpoena must be served to the witness personally. Eytan says that the person to do so, a process server, must be at least 18 years of age and not associated with the case. It can be an investigator or a paralegal, but not an interested party such as a witness. The process server must serve the document by hand. “You can’t leave it on their doorstep,” says Eytan. “It can’t be mailed to them. Otherwise, it’s not valid.”

If a process server hands someone a subpoena and they refuse it, but they’ve physically taken it, and the process server is certain of the identity of the witness, then that is still valid, and the person has been served. If a process server hands someone a subpoena and they drop it on the ground, and the server is certain of their identity, that is also valid.

There is an option to waive personal service. It is legal to mail subpoenas, but Eytan says the best practice is for the attorney to talk to the witness and ask them if they’ll mail it back. “On every subpoena, there’s a section at the bottom that says, ‘I’ll waive my right for you to serve me hand to hand,’” she says. “They can sign that piece of paper and send it back saying, ‘OK, you don’t need to serve me. I’ve received it. I acknowledge it.’”

A lawyer can be authorized to accept a subpoena on your behalf. A lawyer can also challenge the subpoena. “Let’s say you’re a therapist and they want your client’s records,” says Eytan. “It’s advisable to get a lawyer, because you don’t want to violate the rules of your licensure. If you’re a witness, let’s say you’re scared that you’re going to get hurt if you show up in court, you might want to have a lawyer asserting your rights and helping protect you.”

Alleged criminals can get public defenders, but witnesses aren’t provided with free counsel. If you want legal protection, it is important to talk with an experienced attorney.

There are consequences to avoiding service and not complying with a subpoena. “If you’re served with a subpoena or you waive service and you do not show up, then you will be held in contempt of court,” says Eytan.

Even if you don’t want to testify—say, against someone you know, like a family member or friend—and you go to court but refuse to answer questions, you can also be held in contempt. “You can serve up to six months in jail or you can be fined,” Eytan says. “Judges have been known in Colorado—especially in high-profile cases where they might need a witness—to jail somebody.”

According to Eytan, if you receive a subpoena requesting documents, the documents need to be delivered to court before or on the date requested. You don’t need to appear in court, but you can drop off the records. To object the subpoena, you must still show up in court with the documents. The judge will take the documents but will not look at them or give them to anyone.

“What’s the reason you want to quash the subpoena, so these are not produced to the parties?” says Eytan. “The person can come to court and state they don’t think it’s fair that these documents are going to become part of the case for numerous reasons. They’re medical records and they’re private; they’re confidential because they’re attorney-client records; they include mental health records; they’re school records; or the request was too voluminous—it’s overwhelming and they can’t get the documents together.”

Under Colorado law, Eytan says a person has to be subpoenaed within 48 hours of the court date. If they’re served 24 hours before, they still have to come to court and explain that they were not served within the timeframe.

If someone is avoiding service, there’s not much attorneys can do. However, an attorney can pay a sheriff to serve an individual. “If you hire the sheriff’s office to do it, they’re not going to be innately involved in the case, so they’re not going to understand the moves of that individual,” says Eytan. “But sometimes, people are more likely to respond if there’s a sheriff at their door.”

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