"Subpoenas" in Nevada criminal cases (NRS 174.305 - .385)
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 and how they can be served on the witnesses. 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. The penalties for contempt typically include:
up to $500 in fines, and/or
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 discuss how subpoenas work in Nevada criminal cases:
2. Form and content
3. Service requirements
4. Subpoena violations (contempt)
Subpoenas are court-orders compelling witnesses to appear in court to testify.
1. Legal definition of subpoenas and "subpoenas duces tecums" in Nevada
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 recipient to produce physical evidence 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.
1.1. 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:
Cooperative witnesses who agree to appear in court do not need to be subpoenaed.
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 and contents of Nevada subpoenas
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
whether the person is required to bring a document or item to court
Note that when prosecutors subpoena witnesses for a Nevada 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 for Nevada subpoenas
Subpoenas have to be properly "served" on the person being subpoenaed in order to be valid. Parties to the case may not serve the subpoenas personally. Instead, the only people who can physically deliver subpoenas are:
peace officers, or
anyone over 18-years-old who is not a party to the court case
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 Nevada. 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
3.1. Accepting service
Subpoenas must be served correctly in order to be legally valid.
Witnesses can accept subpoenas either through:
being formally served, or
giving a written or oral promise to appear
For a witness's oral promise appear to be legally-recognized, the person accepting the oral promise has to:
identify him/herself to the witness by name and job title;
make a written note of the date of the oral promise as well as the identity of the witness; and
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 Nevada preliminary hearing, the subpoena needs to be properly calendared with the court first.5
Also note that subpoenaed witnesses are generally entitled to a per diem fee of $25 for testifying plus mileage reimbursements.6
3.2. 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. Penalties for disobeying subpoenas in Nevada
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:
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 less).
The court may also order the person to reimburse the defense and/or prosecution for any expenses incurred by the disobeying the subpoena.8
Call our Las Vegas criminal defense attorneys at 702-DEFENSE for a FREE consultation today.
Have you been subpoenaed in Nevada? Or are you facing criminal charges? Our Las Vegas criminal defense attorneys are here to discuss your rights and obligations. Call us at 702-DEFENSE (702-333-3673) for a FREE consultation. We will do everything to try to keep you out of custody so you can get back to your life as soon as possible.
Subpoenaed in California? See our article on "subpoena duces tecums" in California criminal cases.
NRS 174.335 Subpoena for production of documentary evidence and of objects.
1. Except as otherwise provided in NRS 172.139, a subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein.
2. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive.
3. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time before the trial or before the time when they are to be offered in evidence and may, upon their production, permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
NRS 174.375 Subpoena for taking depositions; place of examination.
1. An order to take a deposition authorizes the issuance by the clerk of the court for the county in which the deposition is to be taken of subpoenas for the persons named or described therein.
2. A resident of this state may be required to attend an examination only in the county wherein the resident resides or is employed or transacts business in person. A nonresident of this state may be required to attend only in the county where the nonresident is served with a subpoena or within 40 miles from the place of service or at such other place as is fixed by the court.
NRS 174.315 Issuance of subpoena by prosecuting attorney or attorney for defendant; promise to appear; informing witness of general nature of grand jury's inquiry; calendaring of certain subpoenas.
1. A prosecuting attorney may issue subpoenas subscribed by the prosecuting attorney for witnesses within the State, in support of the prosecution or whom a grand jury may direct to appear before it, upon any investigation pending before the grand jury.
2. A prosecuting attorney or an attorney for a defendant may issue subpoenas subscribed by the issuer for:
(a) Witnesses within the State to appear before the court at which a preliminary hearing is to be held or an indictment, information or criminal complaint is to be tried.
(b) Witnesses already subpoenaed who are required to reappear in any Justice Court at any time the court is to reconvene in the same case within 60 days, and the time may be extended beyond 60 days upon good cause being shown for its extension.
3. Witnesses, whether within or outside of the State, may accept delivery of a subpoena in lieu of service, by a written or oral promise to appear given by the witness. Any person who accepts an oral promise to appear shall:
(a) Identify himself or herself to the witness by name and occupation;
(b) Make a written notation of the date when the oral promise to appear was given and the information given by the person making the oral promise to appear identifying the person as the witness subpoenaed; and
(c) Execute a certificate of service containing the information set forth in paragraphs (a) and (b).
4. A peace officer may accept delivery of a subpoena in lieu of service, via electronic means, by providing a written promise to appear that is transmitted electronically by any appropriate means, including, without limitation, by electronic mail transmitted through the official electronic mail system of the law enforcement agency which employs the peace officer.
5. A prosecuting attorney shall orally inform any witness subpoenaed as provided in subsection 1 of the general nature of the grand jury's inquiry before the witness testifies. Such a statement must be included in the transcript of the proceedings.
6. Any subpoena issued by an attorney for a defendant for a witness to appear before the court at which a preliminary hearing is to be held must be calendared by filing a motion that includes a notice of hearing setting the matter for hearing not less than 2 full judicial days after the date on which the motion is filed. A prosecuting attorney may oppose the motion orally in open court. A subpoena that is properly calendared pursuant to this subsection may be served on the witness unless the court quashes the subpoena.
NRS 174.305 Subpoena for attendance of witnesses; form; issuance. Except as provided in NRS 172.195 and 174.315:
1. A subpoena must be issued by the clerk under the seal of the court. It must state the name of the court and the title, if any, of the proceeding, and must command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but otherwise in blank, to a party requesting it, who shall fill in the blanks before it is served.
2. A subpoena must be issued by a justice of the peace in a proceeding before the justice of the peace under the seal of the court.
NRS 174.345 Service of subpoena.
1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed.
NRS 174.365 Place of service. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Nevada.
NRS 174.315.
NRS 50.225.
NRS 174.325 Production of prisoner as witness.
1. When it is necessary to have a person imprisoned in the state prison brought before any district court, or a person imprisoned in the county jail brought before a district court sitting in another county, an order for that purpose may be made by the district court or district judge, at chambers, and executed by the sheriff of the county when it is made. The order can only be made upon motion of a party upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.
2. When a person required as a witness before a district court is imprisoned, the judge thereof may order the sheriff to bring the prisoner before the court at the expense of the State or, in the judge's discretion, at the expense of the defendant.
NRS 174.385 Contempt. Failure by any person without an adequate excuse to obey a subpoena of a court, a prosecuting attorney or an attorney for a defendant served upon the person or, in the case of a subpoena issued by a prosecuting attorney or an attorney for a defendant, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney or an attorney for a defendant, of the court in which a preliminary hearing is to be held, an investigation is pending or an indictment, information or complaint is to be tried.
NRS 22.100 Penalty for contempt.
1. Upon the answer and evidence taken, the court or judge or jury, as the case may be, shall determine whether the person proceeded against is guilty of the contempt charged.
2. Except as otherwise provided in NRS 22.110, if a person is found guilty of contempt, a fine may be imposed on the person not exceeding $500 or the person may be imprisoned not exceeding 25 days, or both.
3. In addition to the penalties provided in subsection 2, if a person is found guilty of contempt pursuant to subsection 3 of NRS 22.010, the court may require the person to pay to the party seeking to enforce the writ, order, rule or process the reasonable expenses, including, without limitation, attorney's fees, incurred by the party as a result of the contempt.
NRS 22.110 Imprisonment until performance if contempt is omission to perform an act; penalty for failure or refusal to testify before grand jury.
1. Except as otherwise provided in subsection 2, when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, the person may be imprisoned until the person performs it. The required act must be specified in the warrant of commitment.
2. A person so imprisoned as a result of his or her failure or refusal to testify before a grand jury may be imprisoned in the county jail for a period not to exceed 6 months or until that grand jury is discharged, whichever is less.