subpoena

subpoena

[suh-pee-nuh, suhb-]
subpoena [Lat.,=under penalty], in law, an order to a witness to appear before a court. A subpoena ad testificandum [Lat.,= to testify under penalty], the technical term denoting an ordinary subpoena, is a command for an individual to appear at a particular time and place to testify on a specific matter. A subpoena duces tecum [Lat.,=bring with you under penalty] requires a witness to produce at trial books, personal papers, or other material relevant to a judicial proceeding. Failure to obey a subpoena constitutes contempt of court, though subpoenas can be challenged.

In law, a writ commanding the person upon whom it has been served to appear in court or before a congressional committee, grand jury, or some other body, under a penalty for failure to comply. Unlike a summons, a subpoena may command the recipient to produce evidence necessary to the resolution of a legal matter or controversy.

Learn more about subpoena with a free trial on Britannica.com.

A subpoena is commonly defined as a written command to a person to testify before a court or be punished.

More accurately, a subpoena is the conditional threat of punishment made by a governmental authority. It is attached to a command, so that if the recipient does not do as commanded then he may be punished. Subpoenas are associated with common law legal systems.

There are two common types of subpoenas:

Etymology

The term is from the Middle English suppena and the Latin phrase sub poena meaning "under penalty. The term may also be spelled "subpena.

The subpoena has its source in English common law and it is now used almost with universal application throughout the Anglo-American common law world. However, for Civil proceedings in England and Wales, the term has been replaced by witness summons, as part of reforms to replace Latin terms with English terms which are easier to understand.

John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena in the reign of Richard II.

Subpoena process

Subpoenas are usually issued by the clerk of the court (see below) in the name of the judge presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court. Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer representing the plaintiff or defendant on whose behalf the testimony is to be given to serve the subpoena on the witness.

The subpoena will usually be on the letterhead of the court where the case is filed, naming the parties to the case, and being addressed by name to the person whose testimony is being sought. It will contain the language "You are hereby commanded to report in person to the clerk of this court" or similar, describing the specific location, scheduled date and time of the appearance. Some issuing jurisdictions include an admonishment advising the subject of the criminal penalty for failure to comply with a subpoena, and reminding him or her not to leave the court facilities until excused by a competent authority.

Subpoenas in the United States

Issuance of subpoenas in civil matters in U.S. Federal courts

In non-criminal matters in U.S. Federal courts, the rules of procedure provide (in part):

(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of:

(A) a court in which the attorney is authorized to practice; or

(B) a court for a district in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which the attorney is authorized to practice.

Many state courts in the U.S. have adopted similar procedures.

Responding to a subpoena

An individual who receives a subpoena from a grand jury has three choices:

  1. comply with the subpoena; (show up or produce the evidence)
  2. convince a court that you do not have to comply. (motion to quash)
  3. refuse to comply (the court may then hold the person to whom the subpoena was issued in civil contempt)

Quashing the subpoena means the court declares it null and void, so one does not have to comply with it. For example, a court could quash a subpoena if the subject of the subpoena can show that compliance creates an undue burden.

Recently the Sixth U.S. Circuit Court of Appeals in Ohio upheld a ruling that placed a temporary injunction on e-mail searches with subpoenas, for violation of the Fourth Amendment. The 1986 federal Stored Communications Act (SCA) was being used to obtain e-mail from ISPs without warrants and without informing the targets of the investigation. The court held that subpoenas for emails need to include "prior notice and an opportunity to be heard" for the email account holder when the user has a reasonable expectation for privacy relating to the emails.

When considering whether to quash a federal subpoena, make sure the subpoena is not procedurally defective. Remember, the party who serves the subpoena must remember to (1) tender the required witness fees; (2) tender the estimated mileage; (3) properly state the civil action number; and (4) and state the method for recording deposition testimony.

Subpoenas and Congress

The United States Congress also has the power to issue subpoenas and can punish individuals who fail to comply by contempt of Congress, which is similar to contempt of court.

Subpoena Service Procedures

Most states in United States have established procedures for service of process in regard to subpoenas duces tecum (subpoena for records or information subpoena) and subpoena ad testificandum (witness subpoena). In most cases one of the requirements for serving a subpoena is a mandatory subpoena fee which must be given to the recipient of the subpoena. In New York the fee may be $45.00 for US District Court cases, $20 for Supreme Court State of New York cases or $15.00 for Civil Court of the City of New York, Small Claims Part. A subpoena must usually be served by a party not involved in the litigation proceedings, usually a subpoena process server.In many parts of New York, Nevada and other states the person serving the subpoena must be duly authorized by obtaining an official license for legal process serving. Another requirement for effecting service of process of a subpoena is issuing a subpoena affidavit of service after serving the subpoena and filing it with the corresponding court.

See also

Notes

Additional Readings

  • "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2007. Since 2001, dozens of subpoenas have been issued to journalists for sources and information on a range of stories, including the war on terror, steroids abuse in sports and business investigations. What does a breakdown of the numbers and varieties of subpoenas add up to? FRONTLINE spent a few months looking into these questions, and here's what it found.

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