How do “Subpoenas” work in Nevada criminal cases?

Nevada criminal judges issue subpoenas to compel witnesses to come to court to testify. Nevada criminal judges can also issue “subpoenas duces tecums” to compel people to bring to court certain documents and other materials relevant to the case.

Nevada law has strict rules outlining what subpoenas should contain, how they can be served on the witnesses, and what qualifies as proof of service. Subpoenas that are lacking may be held unenforceable by the court.

Witnesses must comply with subpoenas‘ orders or else risk being held in contempt by the court, which carries serious penalties.

Issuing subpoenas is necessary only for witnesses who would not otherwise agree to come to court.

In this article, our Las Vegas criminal defense attorneys will address the following key issues regarding subpoenas in Nevada criminal cases:

• 1. “Subpoena” Meaning
• 2. Form & Contents
• 3. Service Requirements
• 4. Violations
• Additional Reading

1. “Subpoena” Meaning

A subpoena is a court order requiring the recipient to appear at a court proceeding to testify as a witness. Meanwhile, a “subpoena duces tecums” is a court order requiring the production of documents, physical evidence, or other tangible things relevant to the case, such as documents, books, or other objects.

Courts are supposed to issue subpoenas only when the recipients’ testimony is relevant to the case or when they have documents or items relevant to the case. Courts always have the discretion to modify or “quash” (recall”) subpoenas that they find “unreasonable or oppressive.”¹

Subpoenas are only necessary for uncooperative witnesses who do not want to appear in court or produce documents. If a witness is willing to appear and promises to show up, then neither the prosecution nor defense attorney needs to formally subpoena the witness by court order.

Depositions

It is rare that judges permit parties in a criminal case to conduct depositions, which usually occur only in civil cases or federal criminal cases. But in the event a criminal deposition goes forward, Nevada residents who are served with a subpoena are required to attend only if the proceeding takes place in the county where they either:

• live,
• work, or
• transact business.

Meanwhile, non-Nevada residents served with subpoenas to attend a deposition are required to go only if the proceeding is within 40 miles from where they were served (or another place the court determined to be appropriate).²

2. Form & Contents

In order for Nevada subpoenas to be legally enforceable, they have to be issued by the clerk under seal of the court or by a justice of the peace. The subpoena must contain:

• the name of the court,
• the name of the person being subpoenaed,
• the reason for the subpoena,
• when and where the person must appear to give the required testimony or evidence, and
• whether the person is required to bring a document or item to court.

Note that when prosecutors subpoena witnesses for a grand jury, the prosecutors are required to orally inform them of the general nature of the grand jury’s inquiries prior to them taking the stand.³

3. Service Requirements

Subpoenas have to be properly “served” on the person being subpoenaed in order to be valid. Parties to the case may not serve a copy of the subpoena personally. Instead, the only people who can physically deliver subpoenas are:

• peace officers or
• anyone over 18-years-old who is a non-party to the court case, such as a process server.

Note that subpoenas generally may not be served through the mail except when the subpoena is for the person to attend a misdemeanor trial. In this case, subpoenas may be mailed — by registered or certified mail, return receipt requested — to the recipient’s last known address at least ten days prior to the beginning of the trial. Then the certificate of mailing must be filed within the court within two days after the subpoena is mailed.

Subpoenas may be served anywhere in the state of Nevada.⁴

Accepting Service

Witnesses can accept service of the subpoena either through:

• being formally served or
• giving a written or oral promise to appear.

For a witness’s oral promise to appear to be legally-recognized, the person accepting the oral promise has to:

1. identify him/herself to the witness by name and job title;
2. make a written note of the date of the oral promise as well as the identity of the witness; and
3. execute a “certificate of service” revealing the information in (1) and (2) above

Note that if the subpoena is specifically for the witness to testify at a preliminary hearing, the subpoena needs to be properly calendared with the court first.⁵

Also note that subpoenaed witnesses are generally entitled to a witness fee of $25 for each day’s attendance for testifying plus mileage reimbursements.⁶

Subpoenaing Prisoners

Whenever defense attorneys or prosecutors wish to subpoena a jail or prison inmate, they can file a “motion” with the court. This motion would include an affidavit attesting to what the inmate would testify to, and why it is material to the case.

If the judge grants the motion, it would then order the applicable sheriff to bring the inmate to court. The costs of transporting the prisoner will be paid for by the state or defendant (at the judge’s discretion).⁷

4. Violations

Nevada courts may hold people “in contempt” for disobeying a subpoena’s order to appear in court and/or produce evidence or documents. The penalty typically includes:

• up to $500 in fines and/or
• up to 25 days in jail.

Note that if the person was found in contempt for refusing to testify at a grand jury, the court can impose a jail sentence of up to six months or until the jury is discharged (whichever is sooner). Note that most cases can be resolved before trial.

The court may also order the person to reimburse the defense and/or prosecution for any expenses incurred by disobeying the subpoena.⁸

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Legal References