What does subpoena duces tecum mean?
Duces tecum comes from the Latin meaning, “you shall bring with you”. A Subpoena Duces Tecum is known as a “subpoena for the production of evidence” which requires the recipient to produce documents, records, or other tangible objects that may be examined in a trial or hearing. The burden of searching for evidence responsive to the subpoena is on the recipient.
When the nation was founded, it adopted several principles from England. One such principle was that the public has a right to every man’s evidence. Since then courts have concluded that there are limits to the application of that principle. In general, to issue a subpoena duces tecum a law enforcement agency must while thinking like a reasonable and prudent person, have a reason to believe a crime is occurring or has occurred. A court might, upon a proper motion, quash a subpoena duces tecum if the agency did not have the power to issue the subpoena, the materials sought are not relevant to an authorized investigation, and the items sought are not described with particularity and definiteness, as required by the Fourth Amendment of the U.S. Constitution.
Subpoena Duces Tecum VS. The Fourth Amendment
A subpoena duces tecum must comply with the restraints embodied in the Fourth Amendment. For example, federal courts have held that agents cannot arrive with a subpoena duces tecum and force the recipient to immediately hand over all documents called for in the subpoena. Federal agents are not allowed to rummage around a person’s property using the subpoena to find evidence. Law enforcement may only use a search warrant to find items sought in the warrant and take them immediately. An important difference is that a law enforcement agency can obtain a subpoena without any judicial intervention, while a search warrant inserts a neutral and detached judge between law enforcement and the citizen under investigation.
While the law permits law enforcement to broadly draft a subpoena duces tecum to obtain evidence, law enforcement may not use a subpoena duces tecum to go on a fishing expedition. The subpoena also cannot be unreasonably broad or lack such specificity that the recipient cannot determine what evidence is sought. A subpoena duces tecum also cannot simply seek all documents from a recipient. A court might, upon proper motion, quash or modify an unreasonable scope of the evidence sought in a subpoena duces tecum.
