Article 23 Subpoenas, Oaths & Affirmations Flashcards
CPLR 2301
A subpoena requires that:
(a) a witness attend to testify
(b) a defendant answer the complaint
(c) a party disclose his case
(d) the parties agree to certain terms.
Answer: (a)
CPLR 2301 states that a subpoena requires the attendance of a person to give testimony.
CPLR 2301
A subpoena duces tecum can be issued to require which of the following:
(a) the appearance of a judge as a witness
(b) the production of a negative of a photograph
(c) the attendance of an incarcerated person
(d) the appearance of a witness in an administrative proceeding.
Answer: (b)
CPLR 2301 provides that a subpoena duces tecum requires production of books, papers and other things. Thus, choice (b) is the answer.
CPLR 2301
A trial subpoena duces tecum must state on its face that all papers or other items delivered to the court pursuant to the subpoena must be accompanied by:
(a) a sworn affidavit
(b) a copy of the subpoena
(c) copies of all such prior notices
(d) details on individuals capable of authenticating the items.
Answer: (b)
CPLR 2301 provides that the trial subpoena duces tecum must state on its face that a copy of the subpoena must accompany the papers or other items.
CPLR 2302
A subpoena in a civil action may be issued by a(n)
1. clerk of the court
2. sheriff
3. attorney of record for a party.
(a) 1, 2 and 3
(b) 1 and 2 but not 3
(c) 1 and 3 but not 2
(d) 2 and 3 but not 1.
Answer: (c)
CPLR 2302(a) provides that a subpoena may be generally issued without a court order by the clerk of the court (or a judge where there is no clerk), the Attorney-General, an attorney of record for a party, an arbitrator, a referee, or any member of a board, commission or committee authorized by law to hear, try or determine a matter or to do any other act, in an official capacity, in relation to which proof may be taken or the attendance of a person as a witness may be required. Thus, of the persons listed in the question, only a sheriff is unauthorized to issue a subpoena. This section also enables certain child support enforcement units of a social services district to issue child support subpoenas.
CPLR 2302
If the attendance of a person is needed to give testimony but the person is confined in a penitentiary or jail the person’s attendance and testimony:
(a) cannot be obtained
(b) can be obtained by a subpoena issued by an attorney of record for a party
(c) can be obtained only upon consent of the head of the institution in which the person is confined
(d) can be obtained by subpoena issued by the court
(e) both (b) and (d) are correct.
Answer: (d)
CPLR 2302(b) provides that a subpoena to compel attendance of any person confined in a penitentiary or jail shall be issued by the court. Hence, choice (a) is incorrect since a prisoner’s testimony can be obtained.
Choice (b) is incorrect since such a subpoena may be issued only by the court.
Choice (c) is incorrect since the consent of the head of the institution where the person is confined is not required.
CPLR 2302
A subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence may be issued:
(a) by the court
(b) by an attorney of record for a party
(c) by the Attorney-General
(d) (a), (b), and (c) are all correct.
Answer: (a)
CPLR 2302(b) provides that a subpoena to compel production of an original record or document where a certified transcript or copy is admissible in evidence shall be issued by the court. Thus, choice (a) is the only correct answer. Also note, in the absence of an authorization by a patient, a trial subpoena duces tecum for the patient’s medical records may only be issued by a court.
CPLR 2303
A person subpoenaed must be paid or tendered in advance:
(a) authorized traveling expenses
(b) one day’s witness fee
(c) both (a) and (b)
(d) none of the above.
Answer: (c)
CPLR 2303 provides that any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day’s witness fee.
CPLR 2303
A subpoena (other than certain child support subpoenas) is generally served:
(a) by mail only
(b) by personal delivery only
(c) on the witness in any manner designed to give notice
(d) in the same manner as a summons.
Answer: (d)
CPLR 2303 states that a subpoena shall be generally served in the same manner as a summons. Thus, choice (d) is correct.
A copy of any subpoena duces tecum served in a pending civil judicial proceeding must also be served on each party who has appeared.
CPLR 2304
Select the best answer.
A motion to annul a subpoena is called a motion to:
(a) vacate
(b) nullify
(c) quash
(d) squash.
Answer: (c)
CPLR 2304 governs a motion to quash (or annul) a subpoena. Thus choice (c) is the answer.
Choice (a) usually refers to the annulment of a judgment or order. Choice (b) has no support in the CPLR.
Choice (d) has no legal significance (except that some attorneys may play this game in their spare time).
CPLR 2304
Except for certain child support subpoenas, a motion to quash a subpoena, returnable in a court:
(a) must be made in the court in which the subpoena is returnable
(b) may be made in the County Court of the county in which the subpoenaed witness resides
(c) may be made in any court of the county in which the subpoenaed witness is employed
(d) may be made in any court of the county in which the cause of action accrued
(e) (b), (c), and (d) are all correct.
Answer: (a)
CPLR 2304 provides that a motion to quash a subpoena shall generally be made promptly in the court in which the subpoena is returnable.
CPLR 2305
Select the best answer.
(a) If a subpoena provides that the person subpoenaed shall appear on the date stated and any recessed or adjourned date, all that is required to compel his attendance on the adjourned date is reasonable notice of the recess or adjournment.
(b) At the end of each day’s attendance, the person subpoenaed may demand his fee for the next day on which he is to attend; and if such fee is not then paid, he shall be deemed discharged.
(c) Both (a) and (b) are correct.
(d) Both (a) and (b) are incorrect.
Answer: (c)
CPLR 2305(a) states that a subpoena may provide that the person subpoenaed shall appear on the date stated and any recessed or adjourned date. If the person is given reasonable notice of such recess or adjournment, no further process shall be required to compel his attendance on the adjourned date. Thus, choice (a) is correct. CPLR 2305(a) also states that at the end of each day’s attendance, the person subpoenaed may demand his fee for the next day on which he is to attend; and if such fee is not then paid, he shall be deemed discharged. Thus, choice (b) is also correct.
NOTE: 2305(d) requires a subpoena duces tecum for a trial to be served with a copy to all parties simultaneously.
CPLR 2306
When a subpoena duces tecum is served on a hospital for records relating to the condition or treatment of a patient:
(a) a transcript or reproduction, certified by the head of the hospital, may be produced to satisfy the subpoena
(b) the subpoena need not be complied with, because of the confidentiality of medical records
(c) the original record must be produced, to satisfy the subpoena
(d) all parties to the action must join, or the subpoena is not effective.
Answer: (a)
CPLR 2306(a) provides that when a subpoena duces tecum is served on a hospital for medical records, a transcript or reproduction, certified as correct by the head of the hospital, may be produced.
CPLR 2307
A subpoena duces tecum to be served on a department or bureau of the state requiring the production of any books, papers or other things may be issued by:
(a) a justice of the Supreme Court in the district in which the book, paper or other thing is located
(b) a judge of the court in which the action is triable for which the book, paper or other thing is required
(c) both (a) and (b) are correct
(d) neither (a) nor (b) is correct.
Answer: (c)
CPLR 2307(a) provides that a subpoena duces tecum to be served on a department or bureau of the state may be issued as indicated in both choices (a) and (b).
NOTE that effective January 1, 1992, compliance with such a subpoena duces tecum may be made by producing a full-sized legible reproduction of the item to be produced along with a certificate of completeness and accuracy.
CPLR 2307
Unless the court orders otherwise, a motion for a subpoena duces tecum to be served on a department of a municipal corporation must be made on at least notice to such department and the adverse party.
(a) one day’s
(b) two days’
(c) three days’
(d) five days’
(e) none of the above.
Answer: (a)
CPLR 2307 provides that at least one day’s notice must be given.
CPLR 2308
Select the best answer.
A person who fails to comply with a subpoena issued by a judge, clerk, or officer of the court:
(a) may be held in contempt of court
(b) may be liable to the person on whose behalf the subpoena was issued for a penalty not to exceed one hundred fifty dollars
(c) may be liable to the person on whose behalf the subpoena was issued for damages sustained as the result of his failure to comply
(d) all of the above are correct.
Answer: (d)
CPLR 2308(a) provides that failure to comply with a subpoena issued by a judge, clerk or officer of the court (e.g., an attorney) shall be punishable as a contempt of court. Furthermore, a subpoenaed person shall also be liable to the person on whose behalf the subpoena was issued for a penalty not exceeding one hundred fifty dollars and damages sustained by reason of the failure to comply.
