What is a subpoena?
A subpoena (pronounced: sub-peen-uh) is a legal order that forces a witness to appear in court. A witness who does not obey the order can be punished. A witness can be anyone who saw or heard the abuser commit domestic violence against you, or who has first-hand knowledge of abuse (maybe s/he saw your injuries from abuse). Also, a witness can be someone who has evidence (such as pictures of bruises or stained clothing) that resulted from the abuse.
There are three types of subpoenas:
Subpoena ad testificandum (sub-peen-uh add test-if-ik-and-uhm): a legal document that orders a person to show up in court and talk about what they know about the case.
Subpoena duces tecum (sub-peen-uh doo-sez tea-come): a legal document that orders a person to show up in court with certain evidence (documents, pictures, recordings, or other items). The subpoena duces tecum cannot be issued by itself, so it must be issued as a subpoena ad testificandum and duces tecum. This orders the person to talk in court and to bring the objects with them to court.
Notice in lieu of a subpoena (no-tiss in loo of a sub-peen-uh): If the person has a lawyer, you can send the “notice in lieu of a subpoena” to the witness’s lawyer instead of the witness. The notice gets delivered to the witness’s lawyer and orders the lawyer to produce the person at trial to talk about what they know or to present evidence.
When do I use a subpoena?
Because a subpoena is a legal order, it has more power to make the witness appear in court than asking the witness yourself. There may be a witness (like a neighbor who saw the abuser hurt you) or evidence (like a cell phone video or photographs of injuries) that you want the court to know about. However, you might not be sure that the witness will show up for your trial or whether he or she will actually look for and bring the evidence. A subpoena can help you make sure that the witness will show up to talk about what s/he saw and bring any evidence that you asked for. Courts generally require that you pay a small fee ($2 per day) to any witness you subpoena, but you might qualify for a fee waiver if your income is low.
What do I need to include in a subpoena?
All types of subpoenas must include the name of the court, the title of the action, the time and place of appearance, and the name of the witness. A subpoena duces tecum must also include a specific list of the evidence that you want the witness to bring to court. The list of evidence should be very specific so that the order is as clear and reasonable as possible.
Who should I subpoena?
You can subpoena anyone who has information about abuse against you. You can subpoena a friend, a family member, a neighbor, a supervisor, or even a police officer who came to your house after the domestic violence incident.
Before you subpoena anyone, you want to make sure that what they will testify about or talk about is relevant to your case—that means it must be reliable, truthful, and it must help you prove the point that you are trying to make. Also, for a subpoena duces tecum, the request must be reasonable. (Asking for surveillance from a store on a specific date at a specific time is reasonable; asking for surveillance tapes covering the past 12 months is not reasonable.)
Subpoenas are also useful for witnesses who have to work during the day. Witnesses who think they might get in trouble with their boss for leaving to go to court can show the subpoena to their boss and should not get in trouble.
How do I get the subpoena for my witness?
You can get a subpoena by going to the court clerk, by having a lawyer issue the subpoena in the name of the court clerk, or by filling out the subpoena form yourself and signing it in the name of the court clerk.
Go to the court clerk: If you go to the court clerk for a subpoena, you should go to the Superior Court. Bring a check or money order (payable to Treasurer—State of New Jersey) in the amount of $5.00 to:
Superior Court Clerk’s Office
25 West Market Street
6th Floor, North Wing
Trenton, NJ 08625–0971
To confirm the court clerk’s name, call (609) 421-6100.
Create your own subpoena: Blank subpoena forms are available on the NJ Courts website. You will need to change the forms slightly: Change “Law Division, Civil Part” so that it says “Chancery Division, Family Part.” Change the text on the top right of the page, and change the text anywhere else that it says “Law Division, Civil Part”).
Once the subpoena is issued, how does it get to my witness?
The subpoena must be served on the witness. (Service is the formal delivery of a legal document, which should be done in person, when possible.) Because the subpoena is a legal document, it must be served on the witness before it can go into effect. Anyone (except for the court clerk) who is at least 18 years old can serve the subpoena. The person who serves can be you, an attorney, any other party in the case, a professional process server, or anyone else other than the court clerk.
The subpoena should be personally delivered to the witness. If the witness is not at home, the subpoena can be left with a competent (capable) person, age 14 or older, at the witness’s home or place where they normally stay/live. If the witness is a minor under the age of 14, the subpoena must be personally delivered to the minor’s parent, the minor’s guardian, or to a competent adult who lives with the minor.
If you want to subpoena a police officer as your witness, you can get a subpoena issued for the police officer and then serve it at the police department where the officer works. If the police officer is not there when you go to serve the subpoena, you can leave a copy of the subpoena with the presiding (supervising) officer or with the police department’s clerk or secretary.
If you subpoena a witness, you must give the witness $2 per day. If the witness lives in a different county than the county where your hearing is, you must pay $2 for every 30 miles that s/he has to travel going to and returning from court in addition to $2 per day. If you subpoena the defendant, you do not have to pay witness fees.
What is the deadline for serving a subpoena?
There is no firm deadline for serving a subpoena ad testificandum or subpoena duces tecum. Notice in lieu must be served at least five days before your hearing (not counting weekends or holidays). You can use this deadline as a guideline if you are serving a regular subpoena.
Remember, even though there is not a firm deadline for a subpoena duces tecum, the witness must be given a “reasonable” amount of time to gather the evidence that you requested. For example, if you serve a subpoena on Saturday afternoon for a Monday morning court appearance, the judge might say that you didn’t give the witness a reasonable amount of time. If the judge thinks the witness didn’t have enough time, then the judge might delay your hearing and give the witness extra time to prepare or to consult an attorney, or the judge might consider your subpoena to have been invalid.
What do I do after the subpoena is served?
File Proof of Service. After serving the subpoena, you should file proof of service with the court. You can make this proof of service (a) by an acknowledgment of service, signed by the witness or the witness’s attorney; or (b) by an “affidavit” of the process server (or you, if you serve it yourself); or (c) by allowing your lawyer to submit a “certification of service.”
To file proof of service, you can create your own form (for a sample, visit the State Judiciary website). Be sure to include the name and address of the witness (even if you served the witness’s attorney). You should file proof of service with the court immediately after you serve the subpoena on the witness if you can, and at the latest, you should file before your hearing. (The subpoena is still valid even if you fail to deliver the proof of service. But if any problems arise, it will help if you have filed it.)
Prepare questions for your witnesses. Before your hearing, you should prepare your own testimony (what you want the court to know about the domestic violence incident, about past incidents of domestic violence, and about why you need a restraining order) and gather evidence for the upcoming trial date. You should also prepare questions that you want to ask your witnesses. Your questions should help the witness testify about information that is relevant to the domestic violence incident, and that supports your testimony. Sample questions include:
Have you ever witnessed an incident where the defendant abused me?
Do you have photos of the injuries that I sustained from the incident of domestic violence?
(For a police officer): What did you observe when you reported to [address of domestic violence] during or after the domestic violence incident?
What happens if the witness does not obey the subpoena?
If the witness disobeys a subpoena by not appearing in court or not bringing the evidence that you asked for in the subpoena, then the court might punish the witness. The court might fine the witness or say that the witness is “in contempt of court” and order the witness to comply immediately.
If the witness fails to comply with notice in lieu, the court may fine the attorney or require the attorney to pay money to the party who issued the subpoena. (The judge will determine the amount of money.)
This article is from the May 2013 issue of Looking Out for Your Legal Rights®.