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Out of State Subpoena Question

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What is the name of your state? Florida
A few months ago my husband was arrested for domestic violence against me. This happened in Colorado. I now live in Florida. My question is, can the court in Colorado subpoena me as a witness since I now live out of the state? If so, do I need to respond or show up?
 


Just Blue

Senior Member
What is the name of your state? Florida
A few months ago my husband was arrested for domestic violence against me. This happened in Colorado. I now live in Florida. My question is, can the court in Colorado subpoena me as a witness since I now live out of the state? If so, do I need to respond or show up?
Do you have children with your husband? If so, were they witness to the assault?
 

Just Blue

Senior Member
Yes, we have children together.
No, they did not witness anything.
Well...If you don't testify against him then it is likely the DA will drop the charges. Then you can't complain when your hubby gets custody of the children in the divorce.

This is assuming that you were truthful when you filed the criminal complaint and he did, indeed, assault you. .
 

Litigator22

Active Member
What is the name of your state? Florida
A few months ago my husband was arrested for domestic violence against me. This happened in Colorado. I now live in Florida. My question is, can the court in Colorado subpoena me as a witness since I now live out of the state? If so, do I need to respond or show up?
Don't despair and pack your bags as you have received some misleading advice. The truth is that you CANNOT be effectively subpoenaed in Florida to attend a proceeding pending in a Colorado state court! *

However, it is conceivable that where circumstances warrant a Florida court could order you to attend and testify as a witness in a criminal proceeding pending in a Colorado state court. (See: Interstate Extradition of Witnesses in a criminal proceeding Title XLVII Chapter 942 Florida Statutes.)

But that is an arduous and time-consuming undertaking. Essentially it requires, reciprocity between the two states, a certification under seal of a Colorado court commanding your presence in Colorado to testify in a criminal case. And after being summoned by a Florida court to appear before a Florida court and following a hearing before the Florida Court (in which you'd be entitled to be represented by an attorney) the Florida court finds, among other things, that compelling your attendance in Colorado would NOT result in undue hardship to you.

Moreover, Colorado would need to pay in advance statutory travel expenses and per diem. (See: Section 942.02 (4) Fla. Stat.)

In a highly publicized felony criminal prosecution where your testimony is critical - perhaps. But for Colorado to go through the legal rigmarole in the Florida court, to pay your transportation costs to and from Colorado, plus the per diem JUST to testify in a run-of-the-mill two hour DV hearing - assuming that such is within the definition of a criminal case . . . I hardly think so!
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[*] The principle limiting a state courts' sovereign subpoena power to within its borders seems so embedded and intrinsic to our system as not to require citation of authority. But for those need convincing . . . (Emphasis mine)

" . . . it is not within the power of the Georgia courts to compel the attendance of witnesses who are beyond the limits of the state . . ." United States Supreme Court in Minder vs. State of Georgia 183 U. S. 559, 22 S. Ct. 224, 46. L. Ed. 328 (1902)

And this from the Colorado Supreme Court IN RE: the PEOPLE of the State of Colorado, Plaintiff, v. Diomedes ARELLANO-AVILA, Defendant. No. 01SA1. Decided: March 26, 2001:

"Because jurisdiction is so bound up with sovereignty and jurisdictional limitations are so fundamental to American jurisprudence, a number of federal and state courts have determined that a court cannot order the deposition or compel the testimony of persons residing outside its jurisdictional boundaries.   Citing: opeka & Santa Fe R.R. Co. v. Maggard, 6 Colo.App. 85, 88-89, 39 P. 985, 986 (1895); Minder v. Georgia, 183 U.S. 559, 561-62, 22 S.Ct. 224, 225, 46 L.Ed. 328, 330 (1902);  Walker v. Coiner, 474 F.2d 887, 889 (4th Cir.1973);  People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110, 112 (1968);  Wilkerson v. State, 139 Ga.App. 725, 229 S.E.2d 529, 530-31 (1976);  Kardy v. Shook, 237 Md. 524, 207 A.2d 83, 91 (1965).



The inability of a state court to compel a witness to attend a trial due to jurisdictional limitations (paraphrased) does not violate due process or equal protection. See Minder, 183 U.S. at 562, 22 S.Ct. at 225, 46 L.Ed. at 330;  Cavanaugh, 70 Cal.Rptr. 438, 444 P.2d at 112 & n. 3;  Wilkerson, 229 S.E.2d at 530;  Kardy, 207 A.2d at 93."


 

quincy

Senior Member
Misleading? I don’t see that. And nothing Just Blue or I said was inaccurate.

While I agree with the additional information you provided, nonamejustadvice should not be mislead by your post to think she doesn’t need to respond to the subpoena. She does. A response to the subpoena is necessary.
 
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I agree with Quincy.
A subpoena to appear is simply an order from a judge to be at the court at a specified time and date.
It's not a request or a suggestion, it's an order.
 

quincy

Senior Member
Nonamejustadvice could respond to the subpoena with a Motion to Quash, based on jurisdictional grounds. Any motion to quash must be filed and served before the date of appearance.
 

LdiJ

Senior Member
I agree with Quincy.
A subpoena to appear is simply an order from a judge to be at the court at a specified time and date.
It's not a request or a suggestion, it's an order.
However, as litigator pointed out, quite clearly, a Colorado judge does not have the authority to order a Florida resident to appear, unless that judge gets the assistance of the Florida courts. A Colorado judge does not have personal jurisdiction over a Florida resident. Since the Colorado judge knows that, it really is more of a request at this point.
 

quincy

Senior Member
A subpoena is NOT a request. It is an order. If this court order is ignored, it would be a contempt of court.

The subpoena requires a response. A Motion to Quash is a response.
 

Mass_Shyster

Senior Member
A Colorado court does not have the legal authority to issue a subpoena for a Florida resident, any more than a Singapore court or a Zimbabwe court.

However, cases have been reported where a court issued a subpoena for an out of state resident, followed by an arrest warrant for failure to appear. Defendant was arrested in home state, held for transport by foreign jurisdiction, found guilty, and held in jail until appeal overturned conviction (finding no jurisdiction for original subpoena).

Just because it’s not supposed to happen doesn’t mean it won’t.
 

quincy

Senior Member
There is only a brief period of time within which nonamejustadvice has to respond to the subpoena if she wishes to avoid problems. She probably would be smart to take the subpoena to an attorney in her area for a personal look at exactly what she received and to get assistance in drafting a response (e.g., motion).
 

LdiJ

Senior Member
A Colorado court does not have the legal authority to issue a subpoena for a Florida resident, any more than a Singapore court or a Zimbabwe court.

However, cases have been reported where a court issued a subpoena for an out of state resident, followed by an arrest warrant for failure to appear. Defendant was arrested in home state, held for transport by foreign jurisdiction, found guilty, and held in jail until appeal overturned conviction (finding no jurisdiction for original subpoena).

Just because it’s not supposed to happen doesn’t mean it won’t.
I do not disagree at all. However, there is a big difference between an arrest warrant for failure to appear as a witness, and an arrest warrant for failure to appear as a criminal.
 

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