So You're Subpoenaed to Come to Court; Do You Have to?

I got asked an interesting question today. In Virginia, when is a subpoena ad testificandum (a summons to come to court and testify) served too close to the trial date to be valid?

I'll admit, I thought it was either 10 or 14 days. I also thought it was a law more honored in its breach. Almost inevitably, when a trial date comes rolling around one side or the other (often both) issue a flurry of last minute subpoenas. However, it turns out my understanding was wrong. There is no time when it is too late to subpoena a person to testify in court.

If you look at the statutes, there are really only two which are pertinent in criminal cases. § 19.2-267 basically states that the civil rules for summoning people to court apply in criminal cases.  The pertinent section of the civil statutes is § 8.01-407(A). In pertinent part, it states:

The clerk shall not impose any time restrictions limiting the right to properly request a summons up to and including the date of the proceeding.
. . . .
When any subpoena is served less than five calendar days before appearance is required, the court may, after considering all of the circumstances, refuse to enforce the subpoena for lack of adequate notice.

So, whether or not someone who is served three hours before the trial starts will be punished when he goes to work instead of going to court is entirely at the discretion of the court.

That's a bad rule.

To begin with, it leaves people at the mercy of the whims of the judge. In general, I would expect judges to look seriously at the circumstances and lean heavily against punishing people who don't come to court after having been served with a last second subpoena. However, there are going to be some judges who just won't forgive the fact that a subpoenaed witness did not come to court no matter how belated service was or how dire the consequences to the witness' personal life might be.

A second thing to consider here is the fact that the later the subpoena is served the less likely this statute is to provide a safe harbor. If the witness is served 5 days before and knows the trial date is the same day as his father's funeral, the witness can go to the judge and explain his situation. If the subpoena is served at 6 p.m. the day before trial the witness does not have this opportunity. Then the witness has to make the decision entirely on his own whether to obey the subpoena or go to the funeral and later face the ire of a judge who had to delay a jury trial for lack of a subpoenaed witness.

Third, the statute is meaningless. Whether the subpoena was served three days before the trial or three hundred, the judge always has the power to refuse to enforce a subpoena. They are enforced by a judge finding someone in contempt and the judge can always decline to find someone in contempt.

Solution:

The statute needs some language added which would make this less discretionary. I would propose something along these lines:

A subpoena shall be without force unless it is served in a timely manner. In order for a subpoena to be timely served it must be served in such time that the witness has the opportunity to appear before the court on a day prior to the date on the face of the subpoena and explain why he cannot appear as subpoenaed. A subpoena served at any time later than two business days before the date on the subpoena shall always be untimely.