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:

• A subpoena ad testificandum orders a person to testify before the ordering authority or face punishment.
• A subpoena duces tecum orders a person to bring physical evidence before the ordering authority or face punishment.

Etymology

The term is from the Middle English suppena and the Latin phrase sub poena meaning "under penalty."^[1] The term may also be spelled "subpena."^[2]

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 However, for Civil proceedings in England and Wales, the term has been replaced by witness summons, as part of reforms to replace Latin terms with easier to understand English terms.

John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena in the reign of Richard II.^[3]

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.^[4]

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

Responding to a subpoena

An individual that receives a subpoena from a grand jury has three choices^[5]:

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 one could show that compliance would violate one's constitutional rights under the First Amendment, or would create an undue burden on one to comply.

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^[6]. 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.

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.

See also

• continuance
• Subpoena duces tecum
• Subpoena ad testificandum
• Summons
• Subpoena phishing

Notes

Additional Readings

• "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2007. http://www.pbs.org/wgbh/pages/frontline/newswar/part1/subpoenas.html 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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