You're at home. Minding your own business. All is relaxed, until the knock at the door. It's someone with a summons, subpoena, or warrant for YOU. It could be the sheriff, marshal, or other peace officer, a process server, someone you know or a stranger. What's going on? What should you do? Are you being sued? Did you commit a crime or offense? Are you being called as a witness in court? It could be any of these events...
In a Civil Matter
The person at the door is 'serving' you with a legal document, such as a summons, subpoena, warrant, or writ.
Service of process is the delivery of such a document by hand or mail. (The law is ever so polite! It speaks of ìservingî the summons, et cetera.)
Summons (called summons and complaint in federal courts) informs the defendant (∆) that he is being sued and tells him how, when, and where to defend himself.
Note: Anyone at home may be handed the summons and 'served.' Yes, even a child of 'appropriate age' (the age differs from state to state). Refusing to take the summons or throwing it away may have no effect. It has still been 'served.'
Sometimes, as in small claims court, a summons may be delivered by registered or certified mail (with a return receipt request). Here, in contrast to the above, if the ∆ does not receive the letter (or, knowing what it is, refuses to sign for it), then the summons may not be deemed ìserved.î
The important concepts to remember about service of process are the notice and due process requirements of American law. Notice of the legal action to the party affected is critical. (Except in attachments.) The party sued or subpoenaed must be notified through an appropriate service of process. Once so served, he may be subject to the court's jurisdiction. Without proper service his due process rights cannot be exercised. Without notice the ∆ or witness is not subject to the court's jurisdiction. The proceedings cannot continue.
he document server fills out a Proof of Service under oath, stating the time, place, and manner of service. This Proof of Service becomes part of the record in the case.
Once served, what should a person do? He has to respond somehow: by appearing as directed, by seeking a postponement, by filing an answer. At this time he should probably consult an attorney before he does anything.
What if the ∆ doesn't appear in court, even after being properly served? The penalty for not showing up may be a default judgment. That is, he may lose simply by not making an appearance.
A subpoena is a writ (written order) issued by a court or other authority, that compels a person to appear in court, at a hearing or other proceeding, as a witness.
A subpoena duce tecum requires the witness to bring specific materials with him. For example, an office manager may be required to bring all sales receipts or time sheets for a given period of time. Once served, if a witness does not appear, he may be punished for contempt of court.
In a Criminal Matter
The sheriff or marshal at the door could deliver any of the following:
Warrant: This is a writ from a competent authority such as a judge or magistrate directing someone to do something specific, such as arrest a person or search a specific place or thing.
Arrest Warrant: A warrant to seize a person and bring him to court or to inform him when to appear in court. If the person fails to appear as required, the judge may issue a bench warrant for his arrest. This may be issued if a person fails to appear in court to answer a charge or if a witness fails to appear in response to a subpoena. (See above.)
A search warrant to search a specific place or thing. The warrant is based on a law officer's sworn statement, describing the place or thing (such as an apartment or car) to be searched for specific items. The Constitution guarantees that both search and arrest warrants may be issued only on the basis of probable cause. This means that it is reasonable to believe that a crime has been committed (or will be committed) as stated or that certain property is required.
Note: Many lawyers and judges have spent years of their lives, and much law exists, defining the meanings and procedures involved: probable cause, reasonableness, unreasonable search, et cetera. It is a very complex and fascinating area of the law.
Meanwhile, back to the doorway. If the items sought are found as specified, they may be used as evidence in a criminal trial or destroyed as contraband. If a search is conducted without a proper warrant, or evidence not specified is found, the evidence so collected may not be used in court. That evidence may be what is called ìthe fruit of the poisonous tree.î Caveat: This is a complex area of law and each situation is unique.
Note also: Generally, in criminal cases, there may be situations when a warrant is not required. This may be if the person is likely to disappear or if the evidence is likely to be destroyed, or if the person may be dangerous and is likely to commit a crime.
At such times the officer may make a forced entry or arrest without warrant, for example. These situations are generally called ìexigent circumstancesî (emergency situations). Specific rules and guidelines apply in all cases, which differ from jurisdiction to jurisdiction.
