Subpoena
A writ compelling testimony or evidence under penalty.
A subpoena, also spelled subpena or subpœna, and known in some jurisdictions as a witness summons, is a writ issued by a government agency—most commonly a court—that commands an individual to provide testimony or to produce physical evidence, with the threat of a penalty for noncompliance. There are two principal types. A subpoena ad testificandum requires a person to appear and give testimony before the issuing authority. A subpoena duces tecum orders a person or organization to bring physical evidence—such as documents or records—to the authority, often by mailing copies to a requesting party or directly to the court. The term derives from the Middle English *suppena* and the Latin phrase *sub poena*, meaning "under penalty." The writ originated in English common law and is now used throughout the English common law world. It is attributed to John Waltham, Bishop of Salisbury, who is said to have created it during the reign of King Richard II. In England and Wales, civil proceedings now refer to it as a witness summons, part of reforms to replace Latin terms with plain English. In Australia, courts may set aside a subpoena if it amounts to a "fishing expedition"—for example, if requested documents have no relevance to the dispute, as held in *Lowery v Insurance Australia Ltd* by the New South Wales Court of Appeal, which also stated that courts should not redraft subpoenas to narrow their scope. In Victoria, a subpoena is typically issued by a court registry officer without requiring leave of the court. In the United States, judicial subpoenas are issued by federal or state courts, often by the clerk in the judge’s name, and lawyers may issue them as officers of the court. Subpoenas are usually served in blank, with the serving lawyer responsible for personal service and proof of service by a non-party. They typically include language commanding the recipient to appear at a specific place, date, and time, sometimes with a warning such as "Fail not at your peril." 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 in advance. The subpoena power of a state court generally ends at its border, so out-of-state witnesses are handled under the Uniform Law to Secure the Attendance of Witnesses. Many U.S. federal agencies can issue administrative subpoenas without prior j
- type
- Legal writ
- origin
- English common law
- etymology
- Middle English suppena, Latin sub poena ('under penalty')
- creator_attributed
- John Waltham, Bishop of Salisbury
- common_types
- subpoena ad testificandum, subpoena duces tecum
- modern_equivalent_in_England_and_Wales
- witness summons
Lore & Background
The subpoena, also spelled subpena or subpœna, derives its name from the Middle English *suppena* and the Latin phrase *sub poena*, meaning "under penalty." Originating in English common law, it is a writ issued by a government agency—most often a court—to compel testimony or the production of evidence, with failure to comply resulting in punishment. The writ is credited to John Waltham, Bishop of Salisbury, during the reign of Richard II. Two primary 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 be mailed to a party or court. In modern civil proceedings in England and Wales, the term has been replaced by "witness summons" as part of reforms to replace Latin with plain English. 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. They are often served in blank, with personal service required if a witness is reluctant. Administrative subpoenas can be issued by many federal agencies without prior judicial oversight. Grand juries may subpoena witnesses during investigations, and congressional committees have subpoena power for legitimate lawmaking and inquiries, with non-compliance constituting contempt of Congress. Exceptions to compelled testimony include the Fifth Amendment protection against self-incrimination.
Reader's Guide
The subpoena is a fundamental tool in legal proceedings, enabling courts and other government agencies to compel testimony or the production of evidence. Its two primary forms—subpoena ad testificandum and subpoena duces tecum—address the need for oral testimony and physical evidence, respectively. In the United States, judicial subpoenas are issued by federal or state courts, often by the clerk in the judge's name, and lawyers may also issue them as officers of the court. Administrative subpoenas can be issued by many federal agencies without prior judicial oversight, while grand juries and congressional committees also possess subpoena power. Exceptions to compliance include Fifth Amendment protections against self-incrimination, spousal privilege, priest–penitent privilege, attorney–client privilege, physician–patient privilege, diplomatic immunity, and incompetence. A 'friendly subpoena' may be issued to a willing recipient whose cooperation is otherwise barred by legal or ethical duties. Conduct money, paid to cover expenses for attendance, is often required for the subpoena to have legal effect.
Did You Know?
- The term 'subpoena' derives from the Latin phrase sub poena, meaning 'under penalty'.
- John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena during the reign of Richard II.
- In New South Wales, a court may set aside a subpoena as a 'fishing expedition' if the requested documents have no relevance to the proceedings.
- In the United States, the subpoena power of a state court generally ends at that state's border.
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