Subpoena
Encyclopedia
A subpoena icon is a writ
by a government agency, most often a court
, that has authority to compel testimony
by a witness
or production of evidence under a penalty for failure. There are two common types of subpoena:
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 English common law world. 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 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
.
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. If a witness is reluctant to testify, then the personal service
of subpoena is usually required with proof of service.
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. In some situations the person is paid.
Pro se 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 and/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
, unless excepted by hearsay rules
or permitted by 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.
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 10 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 of persons who would have no evidence to present.
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
by a government agency, most often a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
, that has authority to compel testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
by a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
or production of evidence under a penalty for failure. There are two common types of subpoena:
- subpoena ad testificandumSubpoena ad testificandumA 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 the High Middle Ages, especially in England...
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 tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
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 is from the Middle English suppena and the LatinLatin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
phrase sub poena
Poena
In Roman mythology, Poena is the spirit of punishment and the attendant of punishment to Nemesis, the goddess of divine retribution. The Latin word poena, "pain, punishment, penalty", gave rise to English words such as subpoena and pain. The original word is the Ancient Greek poinḗ , also meaning...
meaning "under penalty". The term may also be spelled "subpena". The subpoena has its source in English common law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
and it is now used almost with universal application throughout the English common law world. However, for civil proceedings in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, it is now described as a witness summons, as part of reforms to replace Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
terms with English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
terms which are easier to understand. John Waltham
John Waltham
John Waltham , Bishop of Salisbury was Lord High Treasurer and Lord Privy Seal of England, in the reign of Richard II.-Life:...
, Bishop of Salisbury, is said to have created the writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of subpoena in the reign of Richard II
Richard II of England
Richard II was King of England, a member of the House of Plantagenet and the last of its main-line kings. He ruled from 1377 until he was deposed in 1399. Richard was a son of Edward, the Black Prince, and was born during the reign of his grandfather, Edward III...
.
Subpoena process
Subpoenas are usually issued by the clerk of the court (see below) in the name of the judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court
Officer of the court
The generic term officer of the court applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of...
. Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
representing the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
or defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
on whose behalf the testimony is to be given to serve
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
the subpoena on the witness. If a witness is reluctant to testify, then the personal service
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
of subpoena is usually required with proof of service.
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. In some situations the person is paid.
Pro se 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 and/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
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
, unless excepted by hearsay rules
Hearsay in United States law
Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, "Sally told me Tom was in town," as opposed to "I saw Tom in...
or permitted by 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.
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 10 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 of persons who would have no evidence to present.
Further reading
- "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2010.PBS.org