What does it mean to issue a Subpoena Duces Techum?
03/20/2009 - Courts - State: FL #15700
Full Question:
My son who will be standing trial for burglary and theft of property, in Brevard County. Although, he has fired his Court Appointed Attorney he is attempting to Subpoena Duces Techum issued reuiring my appearance at court. He wants me to bring his laptop, monitor and a VGA(?) Does this stuff have to be examined by the prosecution first? How do I get it to the prosecution?
Answer:
A subpoena which requests items be brought with the person is called a "subpoena duces tecum". A subpoena is an order directed to an individual commanding him to appear in court on a certain day to testify or produce documents in a pending lawsuit. The power to subpoena a person is granted officers of the court, such as clerks of courts, attorneys and judges. A person may be subpoenaed to appear in court or any designated location to provide testimony for trial or deposition or produce documents or other evidence. Failure to comply with a subpoena may subject a person to being held in contempt of court if it appears the absence was intentional or without cause.
In a criminal case, once the prosecution finishes presenting its case in chief, the defendant must be allowed the opportunity to put on a defense. The Sixth Amendment gives defendants the right to subpoena witnesses and compel the production of evidence favorable to their case. The Sixth Amendment guarantees this right even if an indigent defendant cannot afford to pay the expenses that accompany the use of judicial resources to subpoena evidence. Defendants are under no obligation to testify themselves, as the Fifth Amendment right to remain silent applies during trial just as fully as it does during pre-trial questioning by the police.
The following are Florida statutes:
914.04 Witnesses; person not excused from testifying or producing evidence in certain prosecutions on ground testimony might incriminate him or her; use of testimony given or evidence produced. —
No person who has been duly served with a subpoena or subpoena duces tecum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of the person may tend to convict him or her of a crime or to subject him or her to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against the person upon any criminal investigation or proceeding. Such testimony or evidence, however, may be received against the person upon any criminal investigation or proceeding for perjury committed while giving such testimony or producing such evidence or for any perjury subsequently committed.
914.07 Competency of evidence. —
Except as otherwise provided, the law regarding competency of evidence and witnesses in civil cases shall apply in criminal cases.
914.11 Indigent defendants. —
If a defendant in a criminal case is indigent pursuant to s.27.52 and presently unable to pay the cost of procuring the attendance of witnesses, the defendant may seek a deferral of these costs; however, the defendant may subpoena the witnesses, and the costs, including the cost of the defendant's copy of all depositions and transcripts which are certified by the defendant's attorney as serving a useful purpose in the disposition of the case, shall be paid by the state. When depositions are taken outside the circuit in which the case is pending, travel expenses shall be paid by the state in accordance with s. 112.061 and shall also be taxed as costs payable to the state.
914.12 Memorandum of recognizance of witness; removal for violation. —
When a county court judge recognizes a witness to appear before the grand jury, the judge shall give the witness a written memorandum stating that the witness is required to appear before the grand jury and the date when the grand jury will meet. An intentional failure of a county court judge to comply with this section, on recommendation of the grand jury, shall subject the judge to suspension from office by the Governor.
914.22 Tampering with or harassing a witness, victim, or informant; penalties. —
(1) A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
(a) Withhold testimony, or withhold a record, document, or other object, from an official investigation or official proceeding;
(b) Alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official investigation or official proceeding;
(c) Evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official investigation or an official proceeding;
(d) Be absent from an official proceeding to which such person has been summoned by legal process;
(e) Hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding; or
(f) Testify untruthfully in an official investigation or an official proceeding, commits the crime of tampering with a witness, victim, or informant.
(2) Tampering with a witness, victim, or informant is a:
(a) Felony of the third degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a misdemeanor.
(b) Felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a third degree felony.
(c) Felony of the first degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a second degree felony.
(d) Felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a first degree felony or a first degree felony punishable by a term of years not exceeding life.
(e) Life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a life or capital felony.
(f) Felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the offense level of the affected official investigation or official proceeding is indeterminable or where the affected official investigation or official proceeding involves a noncriminal investigation or proceeding.
(3) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from:
(a) Attending or testifying in an official proceeding or cooperating in an official investigation;
(b) Reporting to a law enforcement officer or judge the commission or possible commission of an offense or a violation of a condition of probation, parole, or release pending a judicial proceeding;
(c) Arresting or seeking the arrest of another person in connection with an offense; or
(d) Causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or from assisting in such prosecution or proceeding; or attempts to do so, commits the crime of harassing a witness, victim, or informant.
(4) Harassing a witness, victim, or informant is a:
(a) Misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, where the official investigation or official proceeding affected involves the investigation or prosecution of a misdemeanor.
(b) Felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a third degree felony.
(c) Felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a second degree felony.
(d) Felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a first degree felony.
(e) Felony of the first degree, punishable by a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a felony of the first degree punishable by a term of years not exceeding life or a prosecution of a life or capital felony.
(f) Felony of the third degree, punishable as provided in s.775.082, s. 775.083, or s. 775.084, where the offense level of the affected official investigation or official proceeding is indeterminable or where the affected official investigation or official proceeding involves a noncriminal investigation or proceeding.
(5) For the purposes of this section:
(a) An official proceeding need not be pending or about to be instituted at the time of the offense; and
(b) The testimony or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.
(6) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance:
(a) That the official proceeding before a judge, court, grand jury, or government agency is before a judge or court of the state, a state or local grand jury, or a state agency; or
(b) That the judge is a judge of the state or that the law enforcement officer is an officer or employee of the state or a person authorized to act for or on behalf of the state or serving the state as an adviser or consultant.
Please see the information at the following links:
http://definitions.uslegal.com/s/subpoena-duces-tecum/
http://lawdigest.uslegal.com/criminal-laws/criminal-procedure/7198/
03/20/2009 - Category: Courts - State: FL #15700
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