We often get calls both from people we have subpoenaed to appear at trial and from clients who receive subpoenas wondering why they are getting dragged into someone else’s fight. It is a reasonable question. Why would anyone want to go to court and waste an entire day parking, finding the courtroom, and testifying when they are nothing but a witness. Almost always we will get asked “can’t I just sign an affidavit about what I know?” That is a good thought, but the rules of procedure and the rules of evidence say “No.”
Subpoenas sent to a witness to appear in person and testify are generally an intersection of Rule 45 of the North Carolina Rules of Civil Procedure and Rules 801 and 802 of the North Carolina Rules of Evidence.
Rule 45 (a)(2) states, “A command to produce records, books, papers, electronically stored information, or tangible things may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.” (emphasis added).
Rule 801(c) of the North Carolina Rules of Evidence states, “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 802 of the North Carolina Rules of Evidence States, “Hearsay is not admissible except as provided by statute or by these rules.”
An affidavit is classic hearsay. It is an out of court statement offered for the truth of the matter asserted. So, while an affidavit may be incredibly convenient for the witness, it is not admissible unless it falls within a hearsay exception, or unless all parties agree to a witness offering testimony by affidavit. The idea behind this is that the affiant should be subject to cross examination. Affidavits can be written in a variety of ways and be technically truthful, but still omit relevant information that the opposing party may want to bring to light through an examination of a witness.
Thus, the North Carolina Rules of Evidence make it such that it is generally not an option for a witness who receives a subpoena to “just provide an affidavit and be done with it” as people often tell us they would like to do. Rule 45 gives clerks, judges, attorneys, and other officers of the Court broad authority to compel a witness to attend a legal proceeding and provide testimony. This broad authority is necessary because of the strict hearsay rules contained in the North Carolina Rules of Evidence.
If you find yourself on the receiving end of a subpoena which will require your attendance and testimony, think of it this way: you may someday find yourself in a situation where you need to compel a witness to testify on your behalf, and your right to do that in your own case is your reward for complying with a subpoena.
Having said all of that, there are certainly ways to object to and quash subpoenas under North Carolina law. However, you need a good reason. “I’ve got better things to do” or “this isn’t my fight” do not qualify as good reasons to avoid complying with a subpoena.
If you have received a subpoena, do not delay in contacting an attorney so that you can better understand your rights and obligations associated with the subpoena. One of our attorneys can help you respond to the subpoena and understand why you are being pulled in as a witness to a situation which does not directly impact you. Please let us know if we can help.