Subpoena

A subpoena (/səˈpiː.nə/;[1] also subpœna, supenna or subpena[2]) or witness summons is a writ

issued by a government agency, most often a court, to compel testimony by a witness or
production of evidence under a penalty for failure. There are two common types of subpoenas:

1. subpoena ad testificandum orders a person to testify before the ordering authority or face
punishment. The subpoena can also request that the testimony be given by phone or in
person.

2. subpoena duces tecum 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 a requesting party or directly to a court.

Etymology

Example of subpoena in the case

Anderson v. Cryovac[3]

The term subpoena is from the Middle English suppena and the Latin phrase sub poena meaning
"under penalty".[4] It is also spelled "subpena".[2] The subpoena has its source in English common
law and it is now used almost with universal application throughout the English common law
world. John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena during the
reign of Richard II.[5] 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 Plain English understandable
to the layman.
Process

Australia

In New South Wales, a court may set aside the whole, or part, of a subpoena on the basis that it
is a "fishing expedition". In Lowery v Insurance Australia Ltd, the NSW Court of Appeal held that
where documents requested in the schedule of a subpoena are deemed to have no relevance to
the proceedings in dispute, the subpoena may be set aside as it has no legitimate forensic
purpose. It was also held that it was not the role of the Court to redraft the subpoena and narrow
its scope to those issues in dispute.[6] In Victoria a subpoena is usually issued by a court registry
officer, and does not require leave of the court.

New Zealand

In New Zealand, subpoenas are governed under the rules of the court in which the subpoena is
issued.

United States

Subpoenas are usually issued by the clerk of the court 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.[7] Typically subpoenas are issued "in blank" and it is the
responsibility of the lawyer representing the party (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 by non-party
server.

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, often ending with the archaic threat "Fail not at your
peril." In some situations, the person having to testify or produce documents 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 or directly to court.[8] 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 the 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. Most states (including
California) have further restrictions on subpoena use in criminal cases.[9]

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 ten 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 subpoenaing persons who would have no evidence to present, or subpoenaing
records or testimony that is confidential or privileged.

State courts. The subpoena power of any state court in the United States generally ends at that
state’s border.[10][11] Consequently, lacking any powers outside the state's border, state
prosecutors and defense attorneys in a state criminal case cannot use the same procedures that
they would use to obtain a subpoena for an out-of-state witness that they would for an in-state
witness.[12]

Congress. Standing committees in both houses of the United States Congress have the authority
to send out subpoenas for legitimate lawmaking and investigation purposes. This compels the
production of testimony or records, and failure to respond constitutes contempt of Congress.[13]

There are several exceptions to being required to testify in court, including the following
examples:

Fifth Amendment – Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against themselves. Witnesses cannot be forced to testify
if the testimony may incriminate them. This right can, however, be set aside if the witness is
granted immunity. This immunity allows them to testify, and makes them immune to
prosecution for any crimes they confess to.

Spousal privilege – In most cases, a person cannot be compelled to testify against their
spouse. This rule also exists as a consequence of the Fifth Amendment and the "One flesh"
concept of Marriage. Under this rule, since married spouses are joined together as one entity,
they cannot be forced to testify against each other. Exceptions to this rule include domestic
violence or sexual abuse cases.

Counselors or Priests – Communication with a counselor or priest is considered privileged,

because both jobs require that clients be free to express themselves completely honestly,
 without fear of consequences.

Lawyers – In order to provide competent legal advice, clients must be free to express all
details to their lawyer. Communication with a lawyer is protected, and a lawyer cannot be
forced to testify against a client.

Doctors – Medical professionals are forbidden from disclosing a patient's private medical
information without the patient's permission, under the law of patient confidentiality. A doctor
cannot provide testimony based upon the patient's private medical information, and a doctor
cannot be compelled to disclose medical records.

Diplomats – Foreign diplomats can never be forced to testify in court, under diplomatic
immunity.

Incompetent witness or evidence - A witness may have memory or other cognitive deficits,
which could affect their ability to truthfully recall events. They also may not be physically fit to
appear in court.

Inadmissible evidence – If the evidence is obtained illegally, it is not admissible in court. For
example, someone who sneaks onto private property and overhears a private conversation
between two people cannot testify to that conversation in court. The same applies to illegally
recorded conversations, illegally taken photos, or other eavesdropped conversations. If a
burglar broke into a home and found illicit drugs inside, their testimony to that discovery would
not be allowed in court, as it was illegally obtained.

"Friendly subpoena"

A "friendly subpoena" is a subpoena that is issued to an individual or entity who might otherwise
testify or submit evidence willingly without a subpoena, but is prevented from doing so due to a
higher order legal, ethical or regulatory loyalty, or fiduciary responsibility, which can only be
superseded by a subpoena. It is called a "friendly" subpoena because the recipient would
otherwise be or is very likely to be willing to cooperate with the investigation at issue, once
issued a subpoena.[14][15][16][17][18]

Conduct money

Conduct money is money paid in some legal systems to a person under the compulsion of a
subpoena to pay for their expenses to attend in court.[19] It generally incorporates a daily rate for
each day the witness must attend in court (with a one-day minimum), plus a travel allowance to
allow the witness to get to the place of the hearing. Generally, conduct money must be delivered
with the summons for it to have legal effect. In some jurisdictions, however, failure to provide
conduct money at the time the summons is served is only an irregularity but not fatal to the
validity of the summons. Witnesses are generally entitled to additional conduct money if their
attendance is required on more days than anticipated. Moreover, witnesses who are required to
make an overnight stay to attend in court on more than one day are generally entitled to an
allowance for accommodation and meals.

The rates for travel, daily attendance, accommodation, and meals are generally set under a court
tariff, and are fixed for all witnesses. A witness may not refuse to appear merely because they
believe the conduct money is insufficient to make up for their lost wages or actual travel
expenses. Witnesses may be paid more, but the additional cost cannot be claimed against the
losing party – only the tariff amount can be recovered.

Occasionally, special witnesses, such as experts, may be entitled to receive conduct money
under a higher tariff. As an example, in the Canadian province of Ontario, witnesses in civil
proceedings in the Superior Court are allowed a daily rate of 50.00 CAD. The travel allowance is
$3.00 if the witness resides in the same city as the hearing; 24 cents per kilometre each way if
the hearing is within 400 km (approx. 240 miles); or open ticket coach class airfare, plus 24 cents
per kilometre to the nearest airport to both the witness and the place of hearing if the distance is
over 400 km. The accommodation and meal allowance is $75.00 per overnight stay for anyone
travelling more than a certain distance from the hearing.

See also

Administrative subpoena

Emergency data request

Indictment

Summons

Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal
Proceedings

References

1. "subpoena" (https://dictionary.cambridge.org/dictionary/english/subpoena) . Cambridge

English Dictionary. Cambridge University Press. Archived (https://web.archive.org/web/2018
0209023544/http://dictionary.cambridge.org/dictionary/english/subpoena) from the
original on 9 February 2018. Retrieved 10 November 2019.

2. See, e.g., 18 U.S.C. § 1429 (https://www.law.cornell.edu/uscode/text/18/1429) ; 18

U.S.C. § 3333(c)(1) (https://www.law.cornell.edu/uscode/text/18/3333#c_1) ; 18
U.S.C. § 1968(c) (https://www.law.cornell.edu/uscode/text/18/1968#c) ; and
28 U.S.C. § 1365 (https://www.law.cornell.edu/uscode/text/28/1365) .
 3. "Example Copy of Subpoena in Anderson v. Cryovac landmark case" (http://serc.carleton.ed
u/woburn/resources/trial_documents.html) .

4. Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).

5. Curtis, John (1860). A School and College History of England (https://books.google.com/boo

ks?id=s71XAAAAcAAJ&q=subpoena+power+originated+king+richard&pg=PA139) .
Simpkin, Marshall and Co. p. 139. Retrieved 1 May 2017.

6. Lowery v Insurance Australia Ltd [2015] (http://www.austlii.edu.au/au/cases/nsw/NSWCA/2

015/303.html) NSWCA 303

7. "What Is a Subpoena?" (https://www.findlaw.com/litigation/going-to-court/what-is-a-subpoe

na.html) . Findlaw. Retrieved 2021-04-21.

8. "Pro Se Litigants / Representing Yourself" (http://www.mad.uscourts.gov/general/prose-litig

ants.htm) .

9. "Los Angeles Criminal Court Subpoenas / Rules and Regulations" (http://www.spolinlaw.co

m/blog/2016/10/05/los-angeles-criminal-court-subpoenas/) . 5 October 2016.

10. "Securing the Attendance of Witnesses by Subpoena and Other Process," (https://defender
manuals.sog.unc.edu/sites/default/files/pdf/29.1%20Securing%20the%20Attendance%20o
f%20Witnesses%20by%20Subpoena%20and%20Other%20Process_0.pdf) NC Defender
Manual Vol. 2, Trial, Chapter 29 (2018).

11. Rhonda Wasserman (1989). "The Supoena Power: Pennoyer's Last Vestige," (https://scholar
ship.law.umn.edu/mlr/2156/) 74 Minnesota Law Review 37.

12. Darrell E. White II (May 18, 2021 ). "Subpoenaing Out-of-State Witnesses in Criminal
Proceedings: A Step-by-Step Guide," (https://www.naag.org/attorney-general-journal/subpoe
naing-out-of-state-witnesses/) National Association of Attorneys General.

13. Wilkinson v. United States 365 U.S. 399 (1961), justia.com (http://supreme.justia.com/us/36
5/399/case.html) .

14. "Overall Strategy" (http://digitalcollections.library.cmu.edu/awweb/awarchive?type=file&ite

m=632639) . Carnegie Mellon University Libraries Digital Collections Portal.

15. "US Department of Justice site" (https://www.justice.gov/jm/jm-9-13000-obtaining-evidenc

e) . 19 February 2015.

16. Lauren Fox and Jeremy Herb (12 April 2019). "Cummings to issue 'friendly subpoena' to
Trump accounting firm" (https://www.cnn.com/2019/04/12/politics/elijah-cummings-subpo
ena-mazars-usa/index.html) . CNN. Retrieved 2019-11-08.
17. Flitter, Emily; Enrich, David (2019-04-15). "Deutsche Bank Is Subpoenaed for Trump Records
by House Democrats" (https://www.nytimes.com/2019/04/15/business/deutsche-bank-tru
mp-finances-congress.html) . The New York Times. ISSN 0362-4331 (https://search.worldc
at.org/issn/0362-4331) . Retrieved 2019-11-08.

18. Croucher, Shane (2019-06-26). "Mueller "did not want to testify," wasn't sent a "friendly
subpoena," says intelligence committee chairman" (https://www.newsweek.com/robert-mu
eller-testify-congress-friendly-subpoena-schiff-1445924) . Newsweek. Retrieved
2019-11-08.

19. Conduct money and reasonable costs (https://www.acat.act.gov.au/hearings/subpoenas/c

onduct-money) ACT Civil & Administrative Tribunal

Further reading

"The Press and Subpoenas: An Overview" (https://www.pbs.org/wgbh/pages/frontline/newsw

ar/part1/subpoenas.html) , by Marlena Telvick and Amy Rubin, Frontline, PBS, February 20,
2010.