What Constitutes “Valid” Service of a Subpoena for a Misdemeanor DV Trial and What are the Legal Consequences if the Subpoena is Ignored?

Many of my domestic violence clients have questions and concerns about witnesses being
subpoenaed to their trial settings. More specifically, they have questions and concerns about the
alleged “victim” being subpoenaed to their trial.
Service of Trial SubpoenaSuper Lawyer Hayes
Chapter 174 of the Nevada Revised Statutes governs trial subpoenas. A subpoena to appear at a
misdemeanor domestic violence trial may be served in one of three ways: via personal service, via
certified or registered mail (“return receipt requested”), or via delivery coupled with an oral or
written promise to appear.
. . . 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 . . . service of a subpoena must be
made by delivering a copy thereof to the person named;
. . . 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; or
Witnesses . . . 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).
If the subpoena is not delivered to the witness or victim pursuant to one of the above three methods,
the subpoena was not validly served and carries no legal weight. However,
[a] witness, duly served with a subpoena, shall attend at the time appointed, with
any papers under the witness’s control required by the subpoena, to answer all
pertinent and legal questions, and, unless sooner discharged, to remain until the
testimony is closed.
Failure to Comply with Subpoena
A person that fails to comply with a properly served subpoena, “without an adequate excuse,”
exposes him or herself to a series of potential consequences. In fact, the “[w]illful disobedience
to the lawful process or mandate of a court” qualifies as a misdemeanor criminal offense. Failing
to obey with a properly served subpoena constitutes contempt of court.
Failure by any person without an adequate excuse to obey a subpoena of a court . .
. served upon the person . . . shall be deemed a contempt of the court from which
the subpoena issued . . .
If, after a “show cause” hearing, you are found guilty of contempt of Court, the Court can punish
you by fining you up to $500 or imprisoning you up to 25 days in the detention center. In addition
to the foregoing penalties, the Court could also order you to pay the “reasonable expenses,”
including attorney’s fees, incurred by the party as a result of your contempt. Finally, if a witness
or the victim fails to obey a properly served subpoena, the Court has the authority to issue a
“material witness warrant” for your arrest.
In case of failure of a witness to attend, the court or officer issuing the subpoena,
upon proof of the service thereof and of the failure of the witness, may issue a
warrant to the sheriff of the county to arrest the witness and bring the witness
before the court or officer where the attendance of the witness was required.
A “material witness warrant” is just like any other warrant for arrest; law enforcement will arrest
you and book you into the detention center. You will then remain in custody until the time of the
trial whereupon you will be transported to the Court to appear and testify. The Court can move
the trial setting up to reduce the time the witness spends incarcerated.
In the real world, the following would play out as follows. The defendant would appear at his or
her scheduled trial setting. If the witness or victim was not served with the subpoena, the State or
City would typically dismiss the case or offer a plea deal to a lesser offense. If the witness or
victim was properly served, the prosecutor would do one of three things: (1) make an oral motion
to have the trial continued; (2) ask the Court to issue an “order to show cause” (“OSC”) and
schedule a “show cause” hearing; or (3) ask the Court to issue a material witness warrant. The
prosecutor would sometimes move for a continuance and ask for the “show cause” hearing. The
“order to show cause” is an order directing the disobeying witness/victim to appear at a hearing
and “show cause” as to why he or she should not be held in contempt. If the witness/victim fails
to show at the OSC hearing the Court would then usually issue a material witness warrant. If the
witness/victim does show at the OSC hearing and offers an “adequate excuse” for his or her noncompliance,
then the Court would just admonish the witness to appear at the continued trial setting.
If no adequate excuse is provided, the Court could find the witness/victim in contempt of court
and punish him or her as set forth above. Although prosecutors do not have to wait until after an
OSC hearing has been held before requesting a material witness warrant, they usually do.