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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101381
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Indiana, prosecutor mishandled or failed to deliver a subpoena

Customer Question

Indiana, prosecutor mishandled or failed to deliver a subpoena for information causing defendent to have to resubmit the request 6 months later. Is there anything that can be done for that?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
(A) This is general information and is not legal advice. No specific course of action is proposed herein. No attorney-client relationship or privilege is formed by speaking to an expert on this site. This is repeated in numerous disclaimers throughout the site. By continuing, you confirm that you understand and agree to these terms; and (B) there may be a slight delay between your follow ups and my reply while I am typing out my answer.
Can you please tell me:
1) "Causing Defendant to have to resubmit the request" - what do you mean? Why would the Defendant be asking the Prosecutor to deliver a subpoena?
2) What was the subpoena for and to whom?
3) Is the case still ongoing?
4) What is your relation to the matter?
This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.
I'm the defendent. Was asking for financial records from the plaintiff that could show my innocence in the criminal fraud case.Subpoena was to the plaintiff in the criminal case. Plaintiff is an organization.Yes, charges were filed June 2014 and still ongoing.
Expert:  Ely replied 1 year ago.
Thank you.
So the prosecutor (from the criminal case) was to subpoena the Plaintiff (from the civil case, who also happens to be the complaining victim in the criminal case) for documents showing innocence. However, they still HAVE NOT.
Correct?
Customer: replied 1 year ago.
No this is all a criminal case. No civil case. I may not be saying it right.
Expert:  Ely replied 1 year ago.
You may not be.
Let us try again, then.
You are Defendant.
Prosecutor has the ability to subpoena records from a third party.
They have not.
You want to know if you can force them to do so.
Correct?
Customer: replied 1 year ago.
That sounds right. Except we asked them to subpoena them in January 2015. Something happened and supposedly it was never done on their end. We had followed up with the prosecutor about the status of the subpoena every month and had to have multiple delays in the mean time.
Expert:  Ely replied 1 year ago.
Thank you.
On this website, I do not always get to give good news, and this is one of these times. I understand that hearing things less than optimal is not easy, and I empathize. Thanks in advance for not "shooting the messenger."
The prosecutor is not inclined to help you. Their job - the whole point - is to prosecute. So they do not HAVE to subpoena anything that might help the Defendant (i.e. you).
While this may be argued on ethical grounds, in reality, the prosecutor is not inclined nor mandated to seek out evidence of innocence. On the contrary, their job is to seek proof of guilt.
If Defendant believes that the third party is holding documents that prove innocence, then the Defendant has to subpoena those documents. The Defendant has that ability just like the prosecutor. Then, once these documents are received, they can be used before the Court PRIOR to trial in an attempt to negotiate a settlement or dismiss the case, or, AT trial as proof of innocence.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please rate when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of the top three faces/stars and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Customer: replied 1 year ago.
Ok I explained it wrong. We subpoenaed the third party and something happened they said they never got the subpoena 6 months later
Expert:  Ely replied 1 year ago.
How did you serve the third party with the subpoena? Certified mail, process server, constable?
Customer: replied 1 year ago.
Process server
Expert:  Ely replied 1 year ago.
Thank you.
If so, then the process server should be able to issue an affidavit signifying service on that specific date.
The Defendant has two choices:
1) Send the subpoena again, this time not allowing the third party to claim that they never received it by tracking it very carefully; or
2) Filing a motion to enforce the subpoena and for sanctions against the third party, arguing that the service 6 months ago was valid.
Either step would really have the same effect - the documents being given as needed.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 1 year ago.
So theres no so called punishment for them denying service?
Expert:  Ely replied 1 year ago.
There is if it can be proven:
"2) Filing a motion to enforce the subpoena and for sanctions against the third party, arguing that the service 6 months ago was valid."
If so, then they may be sanctioned and held in contempt, and likely fined, as well as made to pay for one's legal fees in bringing the motion to enforce.
Gentle Reminder: Please, use the REPLY or SEND button to keep chatting, or rate positively and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.