A subpoena (; also subpœna, supenna or subpena) or witness summons is a

writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...

issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoenas: # ''

subpoena ad testificandum A ''subpoena ad testificandum'' is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle A ...

'' orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person. # ''

subpoena duces tecum A ''subpoena duces tecum'' (pronounced in English ), or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In s ...

'' orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.

Etymology

The term ''subpoena'' is from the

Middle English Middle English (abbreviated to ME) is a form of the English language that was spoken after the Norman conquest of 1066, until the late 15th century. The English language underwent distinct variations and developments following the Old English p ...

''suppena'' and the Latin phrase ''sub

poena In Greek mythology, Poena or Poine () is the spirit of punishment and the attendant of punishment to Nemesis, the goddess of divine retribution. Sometimes mentioned as one being, and sometimes in the plural as Poenai (Ποιναί) and are akin ...

'' meaning "under penalty". It is also spelled "subpena".See, e.g., ; ; ; and . The subpoena has its source in

English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, bee ...

and it is now used almost with universal application throughout the English common law world.

John Waltham John Waltham (or John de Waltham) was a priest and high-ranking government official in England in the 14th century. He held a number of ecclesiastical and civic positions during the reigns of King Edward III and Richard II, eventually rising to ...

Bishop of Salisbury The Bishop of Salisbury is the ordinary of the Church of England's Diocese of Salisbury in the Province of Canterbury. The diocese covers much of the counties of Wiltshire and Dorset. The see is in the City of Salisbury where the bishop's seat ...

, is said to have created the writ of subpoena during the reign of Richard II. However, for civil proceedings in England and Wales, it is now described as a witness summons, as part of reforms to replace Latin terms with

Plain English Plain English (or layman's terms) are groups of words that are to be clear and easy to know. It usually avoids the use of rare words and uncommon euphemisms to explain the subject. Plain English wording is intended to be suitable for almost anyone, ...

understandable to the

layman In religious organizations, the laity () consists of all members who are not part of the clergy, usually including any non-ordained members of religious orders, e.g. a nun or a lay brother. In both religious and wider secular usage, a layper ...

Process

Australia

New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

, a court may set aside the whole, or part, of a subpoena on the basis that it is a "

fishing expedition A fishing expedition is an informal, pejorative term for a non-specific search for information, especially incriminating information. It is most frequently organized by policing authorities. Media In the UK, Abu Hamza and Yaser al-Sirri, Jim Dav ...

". In ''Lowery v Insurance Australia Ltd'', the NSW Court of Appeal held that where documents requested in the schedule of a subpoena are deemed to have no relevance to the proceedings in dispute, the subpoena may be set aside as it has no legitimate forensic purpose. It was also held that it was not the role of the Court to redraft the subpoena and narrow its scope to those issues in dispute. In

Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelle ...

a subpoena is usually issued by a court registry officer, and does not require leave of the court.

New Zealand

In New Zealand, subpoenas are governed under the rules of the court in which the subpoena is issued.

United States

Subpoenas are usually issued by the clerk of the court 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 party (

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...

) on whose behalf the testimony is to be given to serve the subpoena on the witness. If a witness is reluctant to testify, then the personal service of subpoena is usually required with proof of service by non-party server. The subpoena will usually be on the letterhead of the court where the case is filed, name the parties to the case, and be 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, often ending with the archaic threat "Fail not at your peril." In some situations, the person having to testify or produce documents is paid. ''

Pro se ''Pro se'' legal representation ( or ) comes from Latin ''pro se'', meaning "for oneself" or "on behalf of themselves" which, in modern law, means to argue on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, o ...

'' litigants who represent themselves, unlike lawyers, must ask a court clerk to officially issue them subpoena forms when they need to call witnesses by phone or in person, or when they need to officially request documents to be sent to them or directly to court. Any documents that have not been subpoenaed to court or verified by a witness may be dismissed by the opposite party as

hearsay Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmis ...

, unless excepted by hearsay rules or permitted by the judge. If the witness is called via long-distance phone call, then the requesting party is responsible for initiating the call and providing a payment with a prepaid phone card. Most states (including California) have further restrictions on subpoena use in criminal cases. Some states (as is the case in Florida) require the subpoenaing party to first file a Notice of Intent to Serve Subpoena, or a Notice of Production from Non-Party ten days prior to issuing the subpoena, so that the other party may have ample time to file any objections. Also, the party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged. Standing committees in both houses of the

United States Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...

have the authority to send out subpoenas for legitimate lawmaking and investigation purposes. This compels the production of testimony or records, and failure to respond constitutes

contempt of Congress Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically, the bribery of a U.S. senator or U.S. representative was considered contempt of Congress. In modern times, contempt of Co ...

. There are several exceptions to being required to testify in court, including the following examples: * Fifth Amendment – Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against themselves. Witnesses can't be forced to testify if the testimony may incriminate them. This right can, however, be set aside if the witness is granted immunity. This immunity allows them to testify, and makes them immune to prosecution for any crimes they confess to. *

Spousal privilege In the common law, spousal privilege (also called marital privilege or husband-wife privilege) is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal ...

– In most cases, a person cannot be compelled to testify against their spouse. This rule also exists as a consequence of the Fifth Amendment and the "One flesh" concept of Marriage. Under this rule, since married spouses are joined together as one entity, they cannot be forced to testify against each other. Exceptions to this rule include domestic violence or sexual abuse cases. * Counselors or Priests – Communication with a counselor or priest is considered privileged, because both jobs require that clients be free to express themselves completely honestly, without fear of consequences. * Lawyers – In order to provide competent legal advice, clients must be free to express all details to their lawyer. Communication with a lawyer is protected, and a lawyer can't be forced to testify against a client. * Doctors – Medical professionals are forbidden from disclosing a patient's private medical information without the patient's permission, under the law of

patient confidentiality A patient is any recipient of health care services that are performed by healthcare professionals. The patient is most often ill or injured and in need of treatment by a physician, nurse, optometrist, dentist, veterinarian, or other health ...

. A doctor cannot provide testimony based upon the patient's private medical information, and a doctor cannot be compelled to disclose medical records. * Diplomats – Foreign diplomats can never be forced to testify in court, under

Diplomatic Immunity Diplomatic immunity is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country.

. * Incompetent Witness or Evidence - A witness may have memory or other cognitive deficits, which could affect their ability to truthfully recall events. They also may not be physically fit to appear in court. * Inadmissible Evidence – If the evidence is obtained illegally, it is not admissible in court. For example, someone who sneaks onto private property and overhears a private conversation between two people cannot testify to that conversation in court. The same applies to illegally recorded conversations, illegally taken photos, or other eavesdropped conversations. If a burglar broke into a home and found illicit drugs inside, their testimony to that discovery would not be allowed in court, as it was illegally obtained.

"Friendly subpoena"

A "friendly subpoena" is a subpoena that is issued to an individual or entity who might otherwise testify or submit evidence willingly without a subpoena, but is prevented from doing so due to a higher order legal, ethical or regulatory loyalty or fiduciary responsibility, which can only be superseded by a subpoena. It is called a "friendly" subpoena because the recipient would otherwise be or is very likely to be willing to cooperate with the investigation at issue, once issued a subpoena.

Etymology

Process

Australia

New Zealand

United States

"Friendly subpoena"

See also

References

Further reading