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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 87526
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Someone I worked with years ago has a felony charge pending. I

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Someone I worked with years ago has a felony charge pending.
I was mailed a subpoena, but not served personally.
I have no involvement with the case whatsoever and I'm puzzled as to why I got served. Are they required to serve me in person? Is a first class mail sufficient?
There is a clause they can issue a warrant if I refuse to show up. It will be a waste of time for me so I really don't want to show. I know there are objections I can file, but I'm just wondering about the proof of service.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Ely replied 11 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation.

A subpoena is a request by a party in the case (prosecutor or the defense attorney) asking a non-party in the case (i.e. you) to bring some evidence that may be vital in the case OR show up and testify in the case if you have vital knowledge of anything.

In other words, subpoena is how a party asks someone who is not involved in the case to provide whatever pertinent information the case may require.

Say A sues B. C is a witness to the original contract, but not involved. Either A or B can subpoena C to come testify.

Are they required to serve me in person?

No.

Is a first class mail sufficient?

Yes. Unlike a summons which has more stringent rules, a subpoena can be simply sent certified letter by itself, or delivered via third party. As long as you get it, that is all that matters.

There is a clause they can issue a warrant if I refuse to show up.

Sounds like this is the prosecutor that is filing it.

It will be a waste of time for me so I really don't want to show. I know there are objections I can file, but I'm just wondering about the proof of service.

Right - one can file a motion to quash subpoena, arguing that one really has nothing to provide. Whether or not you do this is up to you, of course.

But a subpoena MAY BE SENT VIA CERTIFIED LETTER, I am afraid. So as far as the Court is concerned, once it sees USPS proof of delivery, you were served.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.
It was sent first class mail, non certified.

"Sounds like this is the prosecutor that is filing it."

Yes.


"But a subpoena MAY BE SENT VIA CERTIFIED LETTER, I am afraid. So as far as the Court is concerned, once it sees USPS proof of delivery, you were served."

there is no USPS proof of service.

why would they send it non certified?
Expert:  Ely replied 11 months ago.
P,

Subpoenas are governed by Utah Rule of Civil Procedure 45, which states "Service of a subpoena upon the person to whom it is directed shall be made as provided in Rule 4(d)."

4d states:

(d)(1) Personal service. The summons and complaint may be served in any state or judicial district of the United States by the sheriff or constable or by the deputy of either, by a United States Marshal or by the marshal's deputy, or by any other person 18 years of age or older at the time of service and not a party to the action or a party's attorney. If the person to be served refuses to accept a copy of the process, service shall be sufficient if the person serving the same shall state the name of the process and offer to deliver a copy thereof. Personal service shall be made as follows:

(d)(1)(A) Upon any individual other than one covered by subparagraphs (B), (C) or (D) below, by delivering a copy of the summons and the complaint to the individual personally, or by leaving a copy at the individual's dwelling house or usual place of abode with some person of suitable age and discretion there residing, or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process;

(d)(1)(B) Upon an infant (being a person under 14 years) by delivering a copy of the summons and the complaint to the infant and also to the infant's father, mother or guardian or, if none can be found within the state, then to any person having the care and control of the infant, or with whom the infant resides, or in whose service the infant is employed;

(d)(1)(C) Upon an individual judicially declared to be of unsound mind or incapable of conducting the person's own affairs, by delivering a copy of the summons and the complaint to the person and to the person's legal representative if one has been appointed and in the absence of such representative, to the individual, if any, who has care, custody or control of the person;

(d)(1)(D) Upon an individual incarcerated or committed at a facility operated by the state or any of its political subdivisions, by delivering a copy of the summons and the complaint to the person who has the care, custody, or control of the individual to be served, or to that person's designee or to the guardian or conservator of the individual to be served if one has been appointed, who shall, in any case, promptly deliver the process to the individual served...
here.

Here, the prosecutor is likely simply wishing to cut corners and send it to you non-certified, not have you ask many questions, and reply as needed. Often, it is a time issue. Now yes, you can technically possibly quash the subpoena, but until/unless you do so via a MOTION TO QUASH, the subpoena is deemed to have been served properly. This puts you into an uncomfortable position:

1) Challenge the subpoena, waste a few days doing this, possibly get it quashed, but then simply be re-served properly, this time with a mad prosecutor who may then decide to seek retribution for time wasted;

or

2) Simply comply.

I cannot tell you what to do, of course. Likely, they sent it non-certified just to expedite the matter. Whether or not you make an issue out of this for the prosecutor is of course up to you.

Gentle Reminder: Again, surely you prefer that I be honest in my answer – please remember that rating negatively due to receiving bad news still hurts the expert – it is simply the way that the system is set up. Please use REPLY button to keep chatting, or RATE my answer when we are finished. (You may always ask follow ups free after rating.)
Customer: replied 11 months ago.

If I don't go can they get a warrant based on a first class mail letter service only?


seems really odd to me.


Also, would the warrant be for contempt of court?

Expert:  Ely replied 11 months ago.
P,

The threat of criminal action is mostly just a threat, however, in extreme cases, the prosecutor can charge one in such a situation with interfering with an investigation and/or perverting justice, etc.

While the case may fail if the defendant shows that they really never were served properly as required under the law, this would be after a few thousand dollars spent on a Defense attorney. So this may not be worth the effort.

Also, would the warrant be for contempt of court?

It may be for contempt of course, or, as stated above, may be from a new charge for interfering with an investigation and/or perverting justice, etc. There is a number of ways the prosecutor can inconvenience/pursue you if the subpoena is ignored.

So one has to make a decision:

1) File to quash, or
2) Comply.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 87526
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 5 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.

I have a follow up question to this one.


 


The paperwork with the subpoena gives me a whole bunch of ways I can object to the subpoena.


 


May I object using the first allowable objection? And then if the judge overrules me may I object using the 2nd? or do I have to provide all objections at once? I basically want to keep objecting using every rule on the paper one at a time and force them to get the judge to overrule me every time if he chooses to. Granted, I realize this might antagonize the prosecutor, but I really don't want to show up at this hearing.

Expert:  Ely replied 10 months ago.
Hello,

One must provide all objections at once. In other words, the argument would be:

I object because:

A,

in the alternative and/or in addition, B.
in the alternative and/or in addition, C.

Etc.

The Court then rules on whatever objection(s) it agrees with.
Customer: replied 10 months ago.

so if I only file one objection I lose my rights to claim the others?

Expert:  Ely replied 10 months ago.
Essentially yes.

One has the option of filing a Motion to Quash once and is expected to bring up all objects then. If they are denied, one generally loses the right to quash the subpoena, if not directly by operation of law, then by the Judge being annoyed and stating, "Well, should have stated that earlier."

The Court is averse to multiple motions filed where only one can be.
Customer: replied 10 months ago.

In these types of cases do judges often follow the law or do they often decide to side with the prosecutor?

Expert:  Ely replied 10 months ago.
Remember that Judges are part of the Judiciary, which is different from the prosecutor. The Judges follow the law only. While sometimes they may side with the prosecutor, they can always also side with the other party. The Judges are neutral, and they follow the law. So if one's objection is valid, chances are it will be granted...

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