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A subpoena (pronounced /səbˈpiːnə/ or /səˈpiːnə/) is a writ issued by a government agency that has authority to compel testimony by a witness or production of evidence, the agency most often a court, under a penalty for failure.

There are two common types of subpoena:

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

Contents

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] particularly in the United States.

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 However, for Civil proceedings in England and Wales, the term has been replaced by witness summons, as part of reforms to replace Latin terms with English terms which are easier to understand.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.[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. In some situations the person is paid.

Before Issuing the Subpoena

Be sure to check your local/state rules before issuing the actual subpoena, whether it'd be for deposition only or duces tecum, as 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, leaving ample time to file any objections that may be had by the other side.

Notes

  1. ^ Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).
  2. ^ See, e.g., 18 U.S.C. § 1429; 18 U.S.C. § 3333(c)(1); 18 U.S.C. § 1968(c); and 28 U.S.C. § 1365.
  3. ^ LectLaw.com, url retrieved 2008-06-26.

Additional Readings

  • "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2007.[1] 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.

References

  1. ^ PBS.org







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