How to Subpoena Witnesses

In small claims court, you should almost never use a subpoena to compel a witness to come to court and testify unless the witness has already agreed to testify. This is because the very act of dragging someone into court who doesn't want to come may set that person against you.

However, there are unusual circumstances when you may need to subpoena a witness. For example, your witness may need proof that he or she is testifying for you in court on a specific day in order to get approval to miss work. Or, in rare cases, you may really need testimony from a reluctant witness, in which case you can compel the witness to show up by using a subpoena and informing the witness that the court may impose a fine for failure to appear.

In most states, you can require that a witness with firsthand knowledge of what happened be present if that person resides within a certain distance from the courthouse. (The distance varies from state to state. It is often about 150 miles, but in some states subpoenas reach only within county boundaries.)

Expert witnesses cannot be subpoenaed. For this reason they often submit their opinions in writing, a practice that is allowed in most courts.

Check your small claims court for the proper subpoena form. Normally, you need to prepare an original and two copies. Once prepared, take the subpoena form to the clerk, who will issue it. Service must be made personally, and you must return the proof of service, which is often on the back of the subpoena, to the clerk's office.

A subpoenaed witness is usually entitled to a modest fee upon demand. You must pay your witness this fee ahead of time if the witness asks for it.

If you pay your witness transportation fees (as required by law), write a short receipt so that you can prove how much you paid when it comes time to ask the judge to reimburse you for the expense.

The judge has discretion as to whether or not to reimburse you for witness fees. Most judges are strict about this, making the loser pay the winner's witness fees only if they find that the subpoenaed witness was essential to the case. This means that if your case is so strong that you don't need a witness to appear in person but you subpoena one anyway, you may well have to pay the witness fee even though you won the case.  

How to Subpoena a Police Officer

You normally use the standard subpoena form to subpoena a police officer, firefighter, or other peace officer to testify about anything observed or investigated in the course of duty. Fill the form out, take it to the court clerk for a seal and date stamp, then take it to the relevant police or fire department to comply with any of their additional procedures. (For example, the police department may require two copies of the subpoena instead of one.) Give the witnesses plenty of advance notice. You will have to pay the officer's salary for the time taken off work to appear. You must pay this in advance in the form of a deposit (usually about $150), payable to the agency employing the officer. The subpoena may be served on the officer personally or on the officer's superior.

Depending on the amount of the officer's time that is used, you may eventually get a refund of some of your deposit. Don't hold your breath, however. Many law enforcement offices are seemingly unaware that this is a deposit and not a flat fee, and have no procedure in place for issuing refunds.


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