DC Criminal Defense Glossary
Abuse of Discretion
Abuse of discretion is a standard of review whereby a determination of a fact by either a judge or a jury, or a determination of the admissibility of evidence by a judge, can only be overturned on appeal if it is determined that the judge or jury exercised an abuse of discretion in admitting certain evidence or in determining a certain fact. Instances involving abuse of discretion are associated with a very high standard and are therefore very difficult to prove. Because of this, an attorney who is appealing a case on the basis of an evidentiary issue must properly inform his or her client of the difficult odds that the defendant faces in such an appeal. Moreover, an attorney must be able to review the record and evaluate whether the judge or jury’s determination was so egregious as to potentially be seen as an abuse of discretion. If this is the case, then the attorney will potentially want to proceed with the appeal.
The determination of whether something was an abuse of discretion is considered on the basis of the totality of the circumstances. Because of this, an attorney will look at the entire trial record to help inform his or her argument of why a decision was so wrong that it should be reversed on the basis of abuse of discretion.
Appellee
The appellee is the party against whom an appeal is noted. In most circumstances, the appellee is the party that prevailed at the most recent trial; however, in some cases known as interlocutory appeals, the appeal is noted in the middle of the trial.
The appellee has the opportunity to object to a petition or appeal in an effort to convince the court of appeals not to review the matter. If the court of appeals grants the appeal, the appellee will be able to present an argument for why the trial court verdict should not be disturbed. Such an argument may be based upon the standard of review, arguments related to the merits of the case, or the state of the law. In this way, the appellee presents a case as to why the trial court verdict should stand.
Arraignment
In both the federal system and many state systems, an arraignment is a proceeding before trial in which a person who has been charged with a crime will have the charges read to him or her and will be given the opportunity to enter a plea in these charges of guilty, not guilty, or no contest.
In DC, the arraignment proceeding, which is also known as the advisement proceeding, simply consists of the judge advising a defendant of his or her right to retain counsel, right to a speedy trial, and right to appointment of counsel if he or she cannot afford an attorney.
At the arraignment, the defendant will be able to choose to request an appointment, waive the right to counsel, or request time to a hire an attorney and return with one. At the arraignment, the judge will set the date for a trial on the matter. The defendant will not enter a plea. If an attorney has been retained at the time of the arraignment, often, that arraignment will be waived.
If a defendant is charged with a crime that could potentially result in jail time, either on the basis of the statute or on the basis of what the prosecutors are seeking in the case, he or she will have the right to an arraignment. For example, if an individual is arrested for DWI, generally he or she will be taken in and booked. After this, he or she will generally be released either on a bond or on his or her own recognizance with instructions to return to the court within a few days to be advised of his or her right to counsel and to have the opportunity to request an appointment of counsel.
If the defendant has retained an attorney before the arraignment, in most jurisdictions, the arraignment hearing can be waived. If the attorney submits his or her notice of appearance to the court in advance, the defendant will not be required in most jurisdictions to appear at the arraignment and will be saved a trip to court. However, in many DWI cases, the defendant’s license is automatically suspended for an administrative period of seven days after the arrest. In such instances, the arraignment will provide the opportunity for the defendant to have his or her license returned to him or her by the court. This enables the defendant to drive again until the adjudication of the matter at trial.
Arraignments are important in that, in order for a proceeding to be fair, the charged individual must be aware of his or her rights, especially the right to an attorney. However, beyond this, arraignments are not especially important. No evidence is taken in an arraignment and the arraignment does not provide any insight into the case of the prosecution beyond possibly making it clear that the prosecution is not willing to take jail time off. The arraignment is really just a formality to get the case set and to prepare the defendant to retain counsel. However, if a defendant is ordered to appear at an arraignment, they must do so. Failure to appear may result in additional charges and potential incarceration pending trial.
BAC
BAC means Blood Alcohol Concentration or Blood Alcohol Content; it is measured on the basis of grams of alcohol per 200 liters of blood in the system of an individual. BAC is determined through examinations of an individual’s breath or blood, depending on the circumstances of the arrest. BAC is used as a measurement by law enforcement officials because a correlation has been found to exist between blood alcohol concentration and intoxication from alcohol.
As a result of both this correlation and of lobbying from various interest groups, the District has set in place a BAC limit of 0.08 grams per 200 liters of alcohol in the blood while operating a motor vehicle. This means that, if a driver is arrested for a DWI and his or her blood alcohol concentration is 0.08 or above, there exists a permissive inference of intoxication. This allows the court to make the determination that the driver was intoxicated solely on the basis of the BAC readings with no further evidence.
If a driver is arrested for DWI and submits to a breathalyzer exam, the breathalyzer exam will analyze the driver’s breath alcohol concentration and will produce the BAC on its print-out form. The driver will be informed of the results of the exam and these results will be used as evidence against him or her at trial if the test was done according to the proper protocol.
As a condition of being licensed to drive in DC, individuals have implicitly consented to BAC testing if they are lawfully arrested for driving while intoxicated. If an officer stops a driver and determines that probable cause exists to arrest him or her for DWI, the officer will inform the driver of the implied consent statute and will notify him or her that, by law, he or she is required to submit to breath testing for blood alcohol concentration. If the driver does not submit to this testing, then he or she will be charged with a simple violation of refusal to submit to the examination.
If convicted of this violation, the driver will have his or her license suspended for a period of one year beyond any suspension that he or she may receive for a driving while intoxicated charge alone. This one year period is non-negotiable and renders the driver ineligible for a restricted driver’s license which sometimes is issued to drivers convicted of DWI, enabling them to get work or other important places.
Often, in cases involving driving while intoxicated, the blood alcohol concentration of the driver is the single most important a piece of evidence in the prosecution’s case. If the BAC is measured above 0.08, this measurement creates a permissive inference that the driver was, in fact, intoxicated, which allows the individual to be convicted of DWI with no further evidence against him or her.
Additionally, there are enhanced penalties for driving with a BAC above 0.15 and even greater penalties for driving with a BAC above 0.20. Such offenses can result in mandatory and minimum sentences in jail. Because of this, it is important for an attorney in DC to be aware of the role BAC will play in a prosecution and to be able to come up with ways to either argue to exclude that number from prosecution or to build a case to convince the court that the permissive inference of intoxication should not apply, if the driver was not actually intoxicated.
Bench Trial
A bench trial is trial by a judge, rather than a jury. While the constitution guarantees a right to a trial by a jury, there are elements of judicial capacity and efficiency that are considered by the state in attempting to effectively mete out smaller cases by resolving such cases before the point at which a jury would be required. Because of this, any defendant charged with a misdemeanor will first be tried at a bench trial in the General District Court.
However, under state law structured upon the basis of the constitution, any individual convicted at a bench trial in General District Court has the right to automatically appeal that conviction to the circuit court for a new trial de novo. If the individual chooses to appeal the General District Court’s decision, his or her conviction will be completely wiped clean and the trial will proceed afresh in the circuit court.
However, any individual contemplating a jury trial must consider a number of possible negative consequences to an appeal. Jury trials can be very expensive in circuit court. Moreover, jury trials can result in the imposition of punishment that exceeds that imposed in General District Court as, unlike judges, juries are not provided with sentencing guidelines; they are given only the statutory range of possible sentences that they may impose. Consequently, juries often impose harsher sentences as, unlike judges, they are not necessarily familiar with the individual facts and circumstances of an individual defendant or with the societal aims behind the punishments that the guidelines contemplate. Because of this, the sentences imposed by juries can seem very arbitrary to defendants.
It is important to note that this risk applies to both misdemeanor and felony appeals that are tried as a matter of first instance in the circuit court. Additionally, because of the negative potential consequences of a jury trial, most defendants do not exercise this right because they are incentivized not to do so.
However, it is important to note that a jury trial is a right not just for the defendant but also for the prosecution. Thus, any waiver of a defendant’s right to a jury trial, or any attempt to seek a bench trial on the defendant’s behalf must be approved by not only the defendant but also the prosecution and the court. As a result, most felony trials are conducted by juries rather than by individual judges at bench trials.
Departure
A departure, or variance, may be given by a judge when imposing a sentence on a defendant. When a defendant is sentenced by a judge in either the federal or the state system, his or her sentence is determined according to a set of sentencing guidelines that consider the defendant’s criminal history, the nature and circumstances of the crime committed, and society’s interest in dealing with that type of crime. In this way, such guidelines ensure that the process of sentencing is relatively routine and that considerable variation does not exist between the sentencing of defendants have committed similar crimes.
Sentencing guidelines call for a range of potential lengths of incarceration that depend on the facts and circumstances of the crime for which the defendant has been convicted. This range is calculated by a probation officer who evaluates all relevant information and who prepares a pre-sentence report on the basis of interviews with the defendant, analysis of the trial, and record interviews with other parties involved in the case, including potential victims and investigators. After preparing the pre-sentence report, the probation officer then issues a recommendation to the judge regarding the appropriate sentencing range.
Because of a recent Supreme Court case, such sentencing guidelines are not mandatory; constitutionally, a judge must be permitted some discretion in imposing a sentence. However, if a judge wishes to go either above or below the prescribed sentencing range, such an action is referred to as either a
departure or a variance. If a judge issues a departure or variance, he or she must explain his or her reasoning for doing so and incorporate this reasoning into the sentencing order. In this way, the sentencing order provides a record of the judge’s reasoning for his or her departure that can be used in the evaluation of any abuse of discretion claims.
Deposition
A deposition is a form of out-of-court testimony that is conducted during pre-trial discovery and enables an attorney to gain evidence in preparation for a trial. Depositions are especially useful because they enable the parties to know what information potential witnesses have before a trial commences. Because depositions are considered sworn testimony, they also put witnesses on record as having made certain observations. This ensures that, if the witness subsequently states facts that are different to those which he or she stated during a deposition, he or she may potentially be liable for perjury or, at the very least, have his or her credibility severely impeached for the jury or judge considering the matter. Depositions can be taken in criminal cases but are more often seen in civil cases, in which they are a very important evidentiary tool. In criminal cases, depositions are generally taken only in more complex matters. Thus, they are not likely to be seen in criminal misdemeanor cases.
Any time a deposition is taken, a skilled attorney must be aware of the potential scope of a witness’ testimony before deposing that witness. The attorney will need to ask the witness or potential witness questions related to the matters at issue, and determine the extent to which that witness has knowledge of such matters. The attorney must also be very careful to try to elicit as much information as possible without influencing the witness in any way. For these reasons, it is very important for a defendant to provide his or her attorney with as much information as possible such that the attorney is best situated to examine witnesses during depositions.
Grand Jury
The grand jury is a panel of individuals who determine whether or not probable cause exists for a case to proceed to trial. This panel is called from the population of registered voters and, although constitutionally required in the prosecution of many cases, is something of a formality. The proceedings of the grand jury are secret. Only the government is able to present evidence to the jurors and is able to present any evidence it holds, even if this evidence would not be admissible at the actual trial.
Once the prosecutors have finished presenting their evidence, the grand jury is left to evaluate all of the information and to determine whether probable cause exists to find that the defendant committed the offense. The standard for probable cause is much lower than that needed for a conviction, which is proof beyond a reasonable doubt. If the grand jury determines that probable cause exists, it will issue an indictment, or a true bill, which certifies the case to be tried in the Circuit Court.
A grand jury will sit in pretty much every felony case that comes to the Circuit Court, whether the case goes to the court on certification from the General District Court after a preliminary hearing, or whether it comes through a direct indictment. Generally, individuals will sit on a grand jury for a month’s time and review multiple cases that are brought by the District requesting indictment. Once an indictment is returned or not returned, the grand jury’s role in that case is completed.
If the grand jury does not return an indictment in a case, then probable cause does not exist and the case cannot proceed. However, because of the one-sided nature of the grand jury and the lack of protections for a criminal defendant, nearly every case that goes before a grand jury will result in an indictment and allow the case to proceed to trial.
There is an old maxim that “any good prosecutor can indict a ham sandwich.” This is not too far from the truth because the grand jury does not allow for any substantial protections for the defendant. It is entirely on the skill and the judgment of the prosecutor to determine whether an indictment will be returned because he or she is the only one who is able to speak to that grand jury. Essentially, there is no role for the defendant’s attorney at this stage.
If an individual is charged with a crime and proceeds to a preliminary hearing in the General District Court, he or she will be informed when the grand jury will sit on his or her case, and will have an idea of when to expect an indictment, if one is delivered. However, if the individual’s case was directly indicted by the Commonwealth attorney, he or she may not have a preliminary hearing in the General District Court. In such circumstances, the individual will not even necessarily know that his or her case is being considered by the grand jury and that he or she is facing indictment.
Hearsay
Hearsay is a statement made by an out of court declarant that is introduced in the court for the truth of the statement. However, hearsay is viewed to be unreliable and the confrontation clause of the constitution guarantees a defendant the right to confront any witnesses against him or her. Therefore, in criminal trials, hearsay cannot be introduced as evidence in a trial unless it is subject to certain exceptions.
An exception to the inadmissibility of hearsay involves statements made by witnesses who are no longer available, including those who are no longer living. For example, consider a scenario in which an individual was shot to death by a suspect and, in his or her last moment, identified that suspect. Although such a statement would be considered hearsay, it would still be admissible at trial as a dying declaration.
Furthermore, statements by out of court declarants can be admitted if they are deemed not to be hearsay. An example of this would be a statement that is introduced not as a statement of fact, but in order to establish the state of mind of the witness who made the statement. Under such circumstances, the statement would be introduced as evidence, although the judge would issue an instruction to the jury members that they are not to consider the statements as truth, but instead as serving some other, limited purpose.
Because hearsay is such a malleable term that is subject to a number of objections, it is important for an attorney to be particularly attuned to potential hearsay issues and to be prepared to make relevant objections based upon such issues in the heat of the moment at trial. Even inadmissible evidence will sometimes be entered into the court record from time to time if an attorney is not prepared to make objections at the time it is presented or is not aware of all the rules on hearsay. Thus, it is essential for an attorney to anticipate and object to any hearsay that may be presented at the trial to prevent it from being entered into evidence.
Indictment
The indictment is the document that is returned by the grand jury that states that probable cause exists to charge an individual with a crime. This is also known as a “true bill” and is a formal initiation of prosecution in the circuit court. It states the charges the defendant will face at trial.
When a case is initiated, either by certification from JDC or by an attempt at a direct indictment, it will be heard by a grand jury that will consider the prosecution’s evidence and determine whether or not to indict the defendant. If an indictment is not returned, the case cannot proceed. If an indictment is returned, the case can proceed. However, because the indictment is a charging document, a defendant’s attorney will be able to review it and to attack it if it contains errors, if it reflects facts that differ from the charged offense, or if it is otherwise insufficient or defective.
If an individual is indicted for a crime, he or she should retain counsel immediately. A case in court, whether it is a felony or a misdemeanor, that is directly indicted is a serious process. Once an indictment is returned, an individual may be arrested or may be ordered to turn himself or herself in for an arrest. It is never in a party’s best interest to turn himself or herself in without being represented by counsel. When an individual retains counsel, he or she ensures that review of the detainment will be properly conducted and that he or she will not have to spend any more time in jail awaiting trial than is necessary.
An attorney will review the indictment to ensure that is sufficient. He or she will also determine if there are legal challenges to be made to the indictment. However, as a practical matter, this is not the most common occurrence in trials. Thus, the attorney’s role will be very limited in regards to the indictment, other than advising the defendant on the statutes that are relevant to the case.
Jury Instructions
Jury instructions are a set of instructions that a judge provides to the jury at the conclusion of a trial. In a jury trial, the judge has the role of making all of the decisions about what the law is and how it should be applied, but the jury is the sole determiner of whether sufficient facts and evidence exist to convict the defendant of the charges against him or her.
In order to allow the jury to apply these facts and evidence through the law, the judge will give the jury instructions on how to do so and what conditions must be present in order to find the defendant guilty in a criminal case, or to find a party liable in a civil case. Jury instructions are formulated and proposed by attorneys from both sides of the case. These attorneys craft the instructions with the intention of helping their clients and make legal arguments for why their instructions should be provided to the jury.
In a normal case, the judge will hear both sides, will consider both sides, and will make a determination either to provide the jury with one set of instructions or the other or to give his or her own instructions to the jury. Ultimately, however, the judge will provide to the jury the set of instructions he or she feels best states the law. Because jury instructions are pretty much the sole basis of law known to the jury, getting favorable instructions is one of the most important parts of any civil or criminal trial. Because of this, a successful attorney must devote significant research and attention to achieving the most favorable jury instructions for his or her client.
If either party feels the instructions given to the jury are incorrect for any reason, it is that party’s responsibility to object to those instructions at trial in order to preserve the issue to be considered on a future appeal.
Mandatory Minimum
A mandatory minimum sentence is a sentence that is imposed by legislatures in both the state and federal system that require that, if a defendant is convicted of a certain crime, an associated minimum sentence must be imposed. Although a typical sentence in both DC and the federal system will allow a defendant the potential for early release from prison or jail on the basis of sentencing credits for good behavior, a mandatory minimum sentence must be served in full.
Additionally, when a defendant is convicted of a crime, mutual sentencing guidelines will indicate that he or she should not necessarily be subject to incarceration if he or she lacks a criminal history or if certain facts or circumstances were present in the crime. However, if mandatory minimum sentencing guidelines are in place for that crime, such factors will not be considered in the defendant’s sentencing. Due to the inflexible nature of mandatory minimum sentences, prosecutors will often use such sentences as tools by which to extract guilty pleas from defendants in exchange for reduced charges and, in turn, reduced sentencing.
Motion to Suppress
A motion to suppress is a request made by a party in a court proceeding asking a judge to order that certain evidence is excluded from consideration at trial. Generally, a motion to suppress will be requested by the defendant’s attorney.
The potential outcomes of a successful motion to suppress can vary greatly. In some circumstances, such a motion will result in certain evidence not being considered at trial. Under other circumstances, the suppression of certain evidence can result in an automatic judgment of acquittal due to a lack of sufficient evidence. Suppression motions are very important tools for criminal defense attorneys to use in cases in which their client’s constitutional rights have been violated.
It is important for an attorney to be aware of his or her client’s rights upon hearing witness testimony and when viewing any evidence. Important constitutional violations of which an attorney must be aware include unlawful arrests and unlawful searches or seizures. An attorney must consider these potential violations in order to determine whether a suppression motion is in his or her client’s best interest.
Generally, any evidence that can be proven to arise from a constitutional violation will be subject to suppression. An area in which this often comes into play is that of DWI prosecutions as, once a driver is lawfully arrested for DWI, he or she is required to submit to testing to determine his or her blood alcohol concentration. If that testing reveals a number that creates the permissive inference of guilt, then that defendant will have a very difficult sell or an acquittal and a diminished chance of achieving a reduced sentence for his or her DWI conviction.
In these situations, it is, therefore, important for an attorney to look at the duration of the encounter – between the defendant’s driving behavior to any statements he or she made to police. The attorney must also be cognizant of the defendant’s performance on any field sobriety tests in order to determine whether or not the defendant was lawfully arrested and whether probable cause did exist to charge him or her with driving while intoxicated. If the defendant or the defendant’s attorney files a successful motion to suppress that determines the arrest was not lawful, any evidence that was obtained in violation of the constitution will necessarily be suppressed, which may include BAC testing results.
In many cases, if such a violation is found to exist, the defendant will not be able to be convicted of the offense.
Nolo Contendere
Nolo contendere means “no contest.” This is a plea that can be entered by the defendant in a criminal case. By pleading no contest, the defendant is not admitting his or her guilt to the charges but is admitting that he or she believes that the prosecution will be able to present enough evidence to find him or her guilty beyond a reasonable doubt.
A common example of a no contest plea is one in which a defendant does not want to admit to the facts which would establish guilt in open court. Another common example is a situation in which the defendant insists that he or she did not commit the charged crime but wishes to take advantage of a favorable offer from the prosecution in the context of the evidence that exists against him or her.
A plea of no contest does not carry any real advantages for defendants and can potentially carry some disadvantages. For these reasons, individuals should be wary of entering this plea.
Aside from the fact that a defendant, typically, will not be required to admit to facts in open court, when a no contest plea is entered there, a no contest and a guilty plea are essentially the same in certain states. In many states, a no contest plea will allow the defendant to avoid admitting liability that could be used against the defendant in a future proceeding. However, under other state’s laws, a plea of no contest is considered an admission of guilt for civil purposes and a defendant’s plea can still be used against him or her in future proceedings.
Additionally, a no contest plea can be seen by some judges who issue sentences as an abdication of responsibility and may result in judges imposing more serious sentences than they otherwise would if the defendant pleaded guilty and admitted to the facts establishing guilt. For this reason, attorneys should be judicious in whether or not to advise their clients to attempt to enter no contest pleas depending n the jurisdiction they are in, and the judge’s response.
Moreover, judges are not required to accept no contest pleas. There exists no right for a defendant to enter a no contest plea; it is within the court’s discretion to either accept or reject such a plea. However, as a practical matter, most judges will accept a plea of no contest without issue.
Permissive Inference
A permissive inference arises when the existence of one fact by itself allows a judge or a jury to infer another, related fact without any additional information. What this means is that, if a judge or a jury determines that one fact is present, that judge or jury requires no additional information in order to assume the existence of other, related facts.
The most common permissive inference generally relates to blood alcohol content under the DWI statute. If a driver is found, under the implied consent statute, to have a blood alcohol content (BAC) of 0.08 or more, then the judge or the jury considering the facts of the case may infer that the driver was intoxicated at the time that he or she was driving the vehicle on the basis of the individual’s BAC alone. That is, a BAC of 0.08 or higher is legally sufficient to serve as the evidence necessary to convict a defendant of driving while intoxicated.
A permissive inference is very similar to a rebuttable presumption, which is a fact that, if found to be present, puts the burden on the defendant to rebut its existence. This distinction, though seemingly insignificant, is important. Under the constitution, the burden lies with the government to prove every element of a criminal charge beyond a reasonable doubt. Thus, if a statute states that the production of certain evidence by the Commonwealth places the burden on the defendant to rebut an element of a charge, that statute would be considered unconstitutional. However, with permissive inferences, this is not the case.
Still, it is important to note that a judge or a jury may still find a defendant not to be guilty of DWI, even if a blood alcohol content of 0.08 or higher is present. However, as a practical matter; a defendant who records such a reading will most likely need to introduce evidence to rebut the inference of intoxication.
Preliminary Hearing
Preliminary hearings constitute a statutory right that is, under most circumstances, guaranteed to defendants charged with felony offenses. Ostensibly, a preliminary hearing is a probable cause hearing in which the court determines whether enough evidence exists to certify the case to be put in front of a grand jury in the circuit court.
During the hearing, the judge hears testimony from both sides and then makes a determination of whether to certify the case for the circuit court, where it would be considered for potential indictment and trial. In some cases, the preliminary hearing provides an opportunity for the parties to negotiate the charges and to determine whether or not a plea deal can be reached in order to reduce the severity of both the charges and sentencing.
The preliminary hearing is usually the first court appearance for a defendant after the arraignment, which is a limited court appearance in which the defendant is advised of his or her rights to counsel. The preliminary hearing is often the first time that a defendant and his or her attorney have the opportunity to review evidence from the prosecution’s case. Because of this, many attorneys treat preliminary hearings not simply as probable cause hearings, but also as a supplemental discovery process through which they may learn important things about the strengths and weaknesses of the case against their clients.
Because preliminary hearings are conducted in a court not of record, an attorney will often retain a court recorder to transcribe any elicited testimony. This transcription can, in turn, potentially be used to impeach witnesses in subsequent trials that take place.
Preliminary hearings are statutorily guaranteed, subject to some exceptions. However, if a defendant’s right to a preliminary hearing is violated, the remedy will not be to dismiss the charge or to suppress any evidence. Because of this, a prosecutor will sometimes try to find a way to avoid a preliminary hearing in order to avoid disclosing his or her evidence to the defendant before the initiation of the circuit court process. A prosecutor may avoid a preliminary hearing by “directly indicting” the defendant – presenting a case to a grand jury before the defendant is arrested. Sometimes, a prosecutor may be able to present a case to a grand jury even after the defendant has been arrested and a preliminary hearing has been set. However, this is not the most common occurrence as it reflects poorly on the prosecutors and, sometimes, the judges involved in the case. Still, it is an option that sometimes exists and is sometimes taken in order to deny a defendant his or her right to a preliminary hearing.
Subpoena
A subpoena is a document that is issued by the court or by an attorney that compels an individual either to appear in court or to produce documents or other evidence to the court. It is enforceable by law; failure to abide by a subpoena can result in charges of contempt of court.
In a criminal case, the prosecution or the defense attorneys will often want to ensure that their witnesses appear at trial. Rather than simply relying on the good faith of those witnesses, they will want to ensure that the appearance is compelled and that the witnesses cannot back out of their appearance just because they have something else to do. As such, the parties of both sides will generally issue subpoenas to compel the witnesses to appear and testify at trial rather than just try to get those people to come on their own accord.
Subpoenas for documentary evidence, which are known as “subpoenas duces tecum,” compel custodians of records to produce those records or other evidence to the court at an address that is given to the party by a certain date, or to attempt to object to the productions of those records. Very often, with subpoenas duces tecum, the party issuing the subpoena will also ask for the custodian of records to testify to the authenticity of the evidence that he or she is presenting to the court, though sometimes this will not be necessary.
Subpoenas are an essential tool for attorneys to ensure that they are able to present the evidence that they need to present to best argue their case. Because there are time limitations on when subpoenas can be issued and because certain types of subpoenas, especially subpoenas duces tecum, must be approved by a judge, attorneys need to be aware all applicable time limits. Attorneys must also be aware that the burden is on them to issue or request the subpoenas in the allowed time as failing to do so can result in crucial evidence being excluded from a case.
Everyone should know that a subpoena is a legal order and must be abided by. If a party has a reason for why that party cannot or will not appear or produce the requested information, it will need to initiate a formal proceeding in the court to object to the subpoena in an attempt to quash it.
If a person is issued a subpoena, it may be in his or her interest to consult an attorney to help clarify what his or her obligations are and what he or she must do to avoid prosecution for failure to abide by a subpoena. If a party is issued a subpoena and does not abide by the terms, it will likely receive what is known as an “order to show cause” compelling it to appear in court and show a cause to the court for its failure to comply. If the party cannot show a good cause, it can be sanctioned by the court for contempt and issued a fine or, potentially, jail time.
The attorney will be the party responsible for issuing the subpoenas or ensuring that they get issued. In any case, the ultimate responsibility for the subpoenaing is with the attorney, so the attorney will need to be aware of what he or she needs to do to make sure that the subpoenas are issued and to keep track of everything to guarantee that all necessary information will be produced. An attorney may also be needed to consult an individual who receives a subpoena, in order to guide that individual on how to best comply with that order of the court.
Warrant
A warrant is a document issued by a judge or a magistrate finding that probable cause exists to search or arrest an individual or to search a location for a specific purpose. Warrants may be issued to search a building or even a specific room of a building; they may be issued to search a vehicle, and may be issued to search an individual, or to obtain the samples of DNA or blood from that individual. Warrants may also be issued to seize certain property, or to arrest a certain individual.
Warrants are based on the premise that the determination of probable cause should be made by a neutral third party, rather than a police officer investigating a case. For this reason, warrants are issued by magistrates or judges after considering evidence that has been presented to them.
Strictly speaking, the constitution guarantees that a search or arrest will not be conducted without a proper warrant. However, many exceptions to this guarantee have arisen over the years. For example, an arrest for a felony may be made without a warrant at any time or place other than in the residence of a suspect. Misdemeanor arrests may also be made without a warrant if the misdemeanor is observed by an officer. Exceptions to the need for a warrant exist when exigent circumstances exist, such as in circumstances in which an officer can articulate reasonable suspicion that a suspect destroyed or is in the process of destroying evidence, or if the officer can identify circumstances that indicate the suspect may be a danger to public safety.
Given the broad exceptions to the constitutional guarantee of warrants in searches and arrests, it is important for an attorney to be aware of and identify these exceptions, especially in circumstances in which the attorney’s client may have been invalidly searched or arrested without a warrant. Given this, an attorney must also be prepared to make objections to the manner in which the search or arrest was conducted and to request the proper remedy from the court for those actions, including suppression of evidence, dismissal of charges, or, in some rare circumstances, civil liability for the person who violated the law or the constitution.