We have previously addressed why you should not speak to law enforcement without experienced counsel with you. Those articles were entitled “If I Am Innocent Or Have Nothing To Hide, Should I Talk To The Police? No, Giuliani Was Right – ‘The Truth Isn’t The Truth,’” and “What Did Noor Salman Say to the FBI And Why You Should Never Talk To The Police Without a Lawyer.” Usually, after law enforcement is told no, law enforcement will try to overcome your will to act in your best interest and threaten to come back with a subpoena for all the evidence they want. This is delivered in the form of a subpoena duces tecum. The purpose of this article is to demystify a subpoena duces tecum, and explain what it is and is not. We have previously discussed some defenses to a subpoena duces tecum, and will discuss different concerns in this article.
What is subpoena duces tecum? Subpoena duces tecum comes from the Latin meaning, "you shall bring with you". A subpoena duces tecum is also known as a "subpoena for the production of evidence" which requires the recipient to produce documents, records, or other tangible objects that may be used in a trial or hearing.
When the nation was founded, it adopted several principles from England. One such principle was that the public has a right to every man’s evidence. Since then courts have concluded that there are limits to the application of that principle. In general, to issue a subpoena duces tecum a law enforcement agency must while thinking like a reasonable and prudent person, have a reason to believe a crime is occurring or has occurred. A court might, upon a proper motion, quash a subpoena duces tecum if the agency did not have the power to issue the subpoena, the materials sought are not relevant to an authorized investigation, and the items sought are not described with particularity and definiteness, as required by the Fourth Amendment of the U.S. Constitution.
A subpoena duces tecum must comply with the restraints embodied in the Fourth Amendment. For example, courts have held that agents cannot arrive with a subpoena duces tecum and force the recipient to immediately hand over all documents called for in the subpoena. Also, the burden of searching for evidence responsive to the subpoena is on the recipient. Agents are not allowed to rummage around a person’s property using the subpoena to find evidence. Law enforcement may only use a search warrant to find items sought in the warrant and take them immediately. An important difference is that a law enforcement agency can obtain a subpoena without any judicial intervention, while a search warrant inserts a neutral and detached judge between law enforcement and the citizen under investigation.
While the law permits law enforcement to broadly draft a subpoena duces tecum to obtain evidence, law enforcement may not use a subpoena duces tecum to go on a fishing expedition. The subpoena also cannot be unreasonably broad or lack such specificity that the recipient cannot determine what evidence is sought. A subpoena duces tecum also cannot simply seek all documents from a recipient. A court might, upon proper motion, quash or modify an unreasonable scope of evidence sought in a subpoena duces tecum.
Courts have said that what is permissible in a subpoena duces tecum cannot be reduced to a formula. Therefore, it is imperative to retain counsel experienced in criminal and civil investigations to navigate the perils you face when you receive subpoena duces tecum from any government agency. If you believe you are under federal or state investigation, or if you are an attorney with a client under federal or state investigation, contact the Law Offices of Horwitz & Citro, P.A. immediately. Call (407) 901-5852 to request a free initial consultation with an experienced criminal defense lawyer.