A subpoena in criminal court is a court order that a witness appear in court to provide sworn testimony.
In Illinois a criminal subpoena is expressly authorized by statute. See 725 ILCS 5/115-17. Clerk; issuance of subpoenas.
“It is the duty of the clerk of the court to issue subpoenas, either on the part of the people or of the accused, directed to the sheriff or coroner of any county of this State. An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas in a pending action. A witness who is duly subpoenaed who neglects or refuses to attend any court, under the requisitions of the subpoena, shall be proceeded against and punished for contempt of the court. Attachments against witnesses who live in a different county from that where the subpoena is returnable may be served in the same manner as warrants are directed to be served out of the county from which they issue.”
What Is A Subpoena Duces Tecum?
Like a normal subpoena a subpoena duces tecum is a court order that a witness appear in court to provide testimony and in addition to produce record and/or physical evidence.
A person who is responding to a subpoena or a subpoena duces tecum should report directly to the court. Any documents or records should be returned directly to the court.
How does a subpoena work?
You can see from the statute that a subpoena is a court order issued by the clerk of the court.
Both the state and the defendant, through his attorney, may issue subpoenas. The subpoenas are issued to the Sheriff who then personally serves the subpoena to the named witness.
Once the witness has been personally served with a subpoena they are required by law to appear in court and provide testimony.
Additionally the statute above says you can be served by a sheriff in any county in Illinois for a court appearance in another county.
However, if a county in another state wants to subpoena you the procedure is a little more complicated.
Does a subpoena mean you are in trouble?
If you receive a subpoena from the court it does not mean you are in trouble. It just means you are a witness, and the court requires your presence in court for testimony.
the the law in Illinois fairly warns a witness that,
“A witness who is duly subpoenaed who neglects or refuses to attend any court, under the requisitions of the subpoena, shall be proceeded against and punished for contempt of the court.” – 725 ILCS 5/115-17.
That means you are not in trouble when you receive the subpoena, but ignoring it or failure to appear in court could get you in trouble with the judge.
Do I need a lawyer for a subpoena?
In the fast majority of cases you won’t need a lawyer if you have subpoenaed. A subpoena means you’re a witness and not a defendant.
However, if you are worried you may implicate yourself in some kind of criminal activity you may want to consult with an attorney to review your options.
An attorney may be able get you some type of immunity, negotiate with the prosecution, and/or advise you on when and how to invoke your constitutional protections.
Can I get fired if I go to court?
Well, technically the law says that,
“No employer shall discharge or terminate, or threaten to discharge or terminate, from his or her employment, or otherwise punish or penalize his or her employee who is a witness to a crime, because of time lost from regular employment resulting from his or her attendance at a proceeding under subpoena issued in any criminal proceeding relative to the crime. An employer who knowingly or intentionally violates this Section shall be proceeded against and punished for contempt of court. This Section shall not be construed as requiring an employer to pay an employee for time lost resulting from attendance at any proceeding.” –
Subpoenas In Civil Court Work The Same Way
In Illinois subpoenas in civil court work the same way as they work in criminal court. See 735 ILCS 5/2-1101. Additionally, state agencies and boards may employ subpoeans the same way.
See also 725 ILCS 5/112-4 authorizing the use of subpoenas before the grand jury.