Florida Legal Topics

Daytona Beach Legal News - Evidence

The Law Office of Paul Bernardini

Subpoena vs. Summons: Your Legal Rights and Responsibilities

First of all, being served with a subpoena is not the same as being served with a summons; however, failure to comply in either situation will put you in contempt of court, which carries fines, possible jail time, or both. In either instance, you must swear to tell the truth and testify to the best of your ability.

A summons is a demand to appear in court because someone is suing you. It must be served by the sheriff or a licensed private detective. In some cases, a summons can be served by certified mail. Failure to comply with a summons and appear in court results in the other side winning by default, and puts you in contempt of court.

A subpoena is a demand for evidence or testimony on a case that may or may not involve you. It can be your testimony of past events, or documents and/or records you have that are related to the case. Both a summons and a subpoena can be either for a civil or criminal case.

Once a subpoena is issued by the court, however, it can be served by almost anyone as long as it is done properly. Because the court is asking for your participation in a civil or criminal case, you may be paid a fee. The amount depends on various factors, such as distance you have to travel, whether you have to stay overnight, etc.

You can be subpoenaed for specific information in a case you are already involved in. For example, in a child custody case, you may be subpoenaed for DNA samples, medical records, income tax returns, or computer files.

While it may be disconcerting to receive a summons or a subpoena, don’t panic. There are time limits in which to respond, however. You should immediately speak with your attorney, who can review and discuss your testimony and advise you about the consequences.

You should know that you have a constitutional right that protects you from giving evidence or testimony which will incriminate you. However, you must never destroy any evidence that is related to the case. Let your attorney decide what to do with the evidence you have. He or she will advise you and represent you in court, if necessary.

If you receive a subpoena or a summons, or have any questions at all about these two processes, please call me at Bernardini Law, 386-258-3453. I’ll be happy to discuss your situation with you, at no charge. Together we’ll together to address your situation and plan the most beneficial outcome.

Negligence and Evidence

Fifth District holds plaintiff should have been permitted to amend complaint to allege comparative negligence; also error to admit DCF shelter orders without hearsay exception. Hartong v. Bernhart, 38 FLW D2571 (Fla. 5th DCA 12-6-2013).

Automobile Accidents - Evidence

The defendant's misconduct is sometimes not known to the jury.

In an automobile accident case involving the use of drugs by the defendant, the Second District ruled on December 20, 2013, that evidence of the drug use was not admissible where the defendant admitted that the defendant was liable for both compensatory and punitive damages and that the defendant had acted with gross negligence which was the proximate cause of the wrongful death of the decedent. Swanson v. Robles, 39 FLW D13 (2nd DCA, December 20, 2013).

Evidence - Premises Liability

Bar fights prior incidents of violence, failure to maintain adequate security to protect patrons:

The admissibility of evidence of prior violence in a tavern or any business establishment was discussed in Bellevue v. Frenchy’s South Beach Café, Inc., 38 Fla. L. Weekly D2537 (2nd DCA, December 4, 2013). The Second District reviewed cases from the Supreme Court of Florida and other districts to the effect that these prior incidents were admissible whether or not those incidents involved damage to persons or property.  The Court held that evidence of prior incidents, similar or not, was admissible saying, at 38 Fla. L. Weekly D2538:

“While evidence of prior similar incidents [is] helpful, a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability.    Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible to determining that issue.”

Social Media Evidence

Social media evidence - Facebook and other electronically stored information.

If you are involved in litigation, anything you have ever put on Facebook or any other electronically stored information site may be admissible against you. Florida Rules of Civil Procedure were specifically amended in 2012 to provide guidelines pertaining to the discoverability of electronically stored information.  See Rule 1.350 (Section A and Section B) addressing the production of electronically stored information.

We believe it is much safer to avoid social media if you have a case pending. Nothing you put on a social media site can help you and it is generally only admissible if it hurts your case.