Subpoena

Lore & Background

The subpoena, also spelled subpena or subpœna, is a writ issued by a government agency, most often a court, to compel testimony or the production of evidence under penalty for failure. Its name derives from the Middle English suppena and the Latin phrase sub poena, meaning "under penalty." Originating in English common law, it is attributed to John Waltham, Bishop of Salisbury, who is said to have created the writ during the reign of Richard II. Two common types exist: a subpoena ad testificandum orders a person to testify before the issuing authority, while a subpoena duces tecum orders a person or organization to bring physical evidence, often used to request copies of documents.

In civil proceedings in England and Wales, the term has been replaced by "witness summons" as part of reforms to replace Latin terms with Plain English. In Australia, courts may set aside a subpoena if it constitutes a "fishing expedition," meaning the requested documents lack relevance to the proceedings, as held in Lowery v Insurance Australia Ltd. In the United States, judicial subpoenas are federal or state court orders, typically issued by the court clerk in the judge’s name, though lawyers may issue them as officers of the court. Subpoenas are often issued "in blank," with the lawyer serving the witness; personal service with proof by a non-party server is usually required for reluctant witnesses.

The subpoena usually appears on court letterhead, names the parties, and commands the recipient to appear at a specific location, date, and time, sometimes including an admonishment about criminal penalties for non-compliance. Pro se litigants must request subpoena forms from a court clerk. Some states, like Florida, require a Notice of Intent to Serve Subpoena ten days prior. The subpoenaed party may object if the request is improper, irrelevant, or seeks confidential or privileged material.

State court subpoena power generally ends at the state border; for out-of-state witnesses, the Uniform Law to Secure the Attendance of Witnesses is used. Many federal agencies can issue administrative subpoenas without prior judicial oversight. Grand juries can subpoena witnesses to testify, and congressional committees can issue subpoenas for legitimate lawmaking and investigation, with failure to respond constituting contempt of Congress.

Reader's Guide

In the United States, judicial subpoenas are federal or state court orders to produce records or testimony, typically issued by the clerk of the court in the judge's name. Lawyers may also issue subpoenas as officers of the court. Administrative subpoenas can be issued by many federal agencies without prior judicial oversight. Grand juries and congressional committees also have subpoena power.

Exceptions to testifying include Fifth Amendment protection against self-incrimination, spousal privilege, priest–penitent privilege, attorney–client privilege, physician–patient privilege, diplomatic immunity, and incompetence. A 'friendly subpoena' is issued to a willing witness whose cooperation is otherwise barred by legal or ethical duties. Conduct money, paid to cover expenses, must often be delivered with the summons for legal effect.