By Matthew Pence
Staff Attorney
It is a nice evening in a PAGE member’s home, and she is going through a stack of mail on her kitchen table. There’s an odd envelope in the stack; one sent certified mail. She opens the envelope and finds that it is a subpoena to appear in court next week regarding the child abuse report she made last year. What is she to do? – Stay calm, take action, and call PAGE if needed.
Stay Calm
Subpoenas are part of our legal system and without them the justice system would not function properly. A subpoena is an order, usually issued by a lawyer, requiring a person to appear in a proceeding at a specified date and time. It may also require the production of documents. In short, it means that a lawyer before the court believes that a witness has pertinent information related to the pending case. In their professional capacity, educators are most often subpoenaed in custody matters and criminal matters involving their duty to report child abuse. This article addresses those instances.
Take Action
As soon as possible after receiving a subpoena, it is important to put the school system on notice that you are under subpoena and will most likely be out of school on the date summoned. Appearing in court to provide testimony on matters per your professional obligations results in no deduction of leave or pay.
Review the subpoena to determine if it encompasses any documents. If so, notify the principal and board office administrators. The school board’s attorney may need to be involved in determining which documents need to be produced. Only in the rarest of cases will a classroom teacher make a decision on the production of documents. In some instances, the school board attorney or district administrator may actually manage the process – inclusive of document delivery to the court – on an educator’s behalf.
Scheduling conflicts: In this instance, notify the lawyer who issued the subpoena to see if the schedule can be changed. If it cannot be changed, then honor the subpoena. Even though a subpoena is issued by a lawyer, it is issued under the authority of the court. Failure to appear creates enormous problems for the educator, in addition to the underlying issue before the court. Failure to appear is contempt of court. The judge may issue a bench warrant (for arrest) or order the sheriff to find the educator and bring her to court. Avoid this nightmare and show up!
While educators are usually aware of the matter, there are instances, usually in custody cases, where the subpoena comes as a surprise. Sometimes, educators have nothing of value for the court. It is perfectly acceptable in these instances to notify the subpoenaing attorney that this is the case. It most often results in a release from the subpoena.
To prepare for court, it is best to review pertinent documents or memory aids in order to assist in providing clear, reliable testimony. Do not discuss the subpoena or underlying issue with anyone at school except those on a right or need-to-know basis. Remember, the issue before the court is not the educator. Your evaluations, employment history, and personnel file are not admissible unless those are pertinent to the inquiry (and they most likely are not).
When arriving at court, don’t be surprised if you are placed in a room by yourself. This common practice is designed to ensure that witnesses do not hear each other’s testimony. When the court is prepared to hear your testimony, you’ll be summoned to the courtroom, placed under oath, and asked questions by the party who issued the subpoena. This is called direct examination. At the conclusion of direct examination, the opposing party may cross examine. It is imperative to answer all questions honestly regardless of which party asks them. If the answer is “I don’t know” then that is the answer.
Once testimony is complete, you’ll be released from the subpoena unless the judge indicates otherwise. Upon returning to school, it is appropriate to debrief with your principal. This is generally the conclusion of the matter.
Call PAGE if You Have Questions or Concerns
Though subpoenas are a normal and essential part of the judicial process, educators may, at times, have questions or concerns beyond the scope of those addressed here. As a PAGE member, you have access to one-on-one, privileged and confidential legal consultation with a PAGE attorney. If you’ve been subpoenaed in your professional capacity and would like to speak with a PAGE attorney, call 770-216-8555 (option 1) Monday through Friday 8:30 a.m. – 5:00 p.m. or send an email to legal@pageinc.org.
Matthew Pence is a PAGE staff attorney. A former high school history teacher and graduate of Emory University School of Law, Matthew has served PAGE members for more than a decade.