View source for Subpoena

{{Short description|Writ to compel testimony or the yielding of evidence}}
{{Wiktionary|subpoena}}
A '''subpoena''' ({{IPAc-en|s|ə|ˈ|p|iː|.|n|ə}};<ref>{{cite dictionary|title=subpoena|url=https://dictionary.cambridge.org/dictionary/english/subpoena|dictionary=[[Cambridge English Dictionary]]|publisher=[[Cambridge University Press]]|access-date=10 November 2019|archive-url=https://web.archive.org/web/20180209023544/http://dictionary.cambridge.org/dictionary/english/subpoena|url-status=live|archive-date=9 February 2018}}</ref> also '''subpœna''', '''supenna''' or '''subpena'''<ref name=":0" />) 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:
# ''[[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.
# ''[[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==
[[File:Subpoena usgs.jpg|thumb|200px|right|Example of subpoena in the case ''[[Anderson v. Cryovac]]''<ref>{{cite web |url=http://serc.carleton.edu/woburn/resources/trial_documents.html |title=Example Copy of Subpoena in Anderson v. Cryovac landmark case}}</ref>]]
The term ''subpoena'' is from the [[Middle English]] ''suppena'' and the Latin phrase ''sub [[poena]]'' meaning "under penalty".<ref>[[Webster's Dictionary|Webster's]] New Collegiate Dictionary, p. 1160 (8th ed. 1976).</ref> It is also spelled "subpena".<ref name=":0">See, e.g., {{usc|18|1429}}; {{uscsub|18|3333|c|1}}; {{uscsub|18|1968|c}}; and {{usc|28|1365}}.</ref> The subpoena has its source in [[English law|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 of England|Richard II]].<ref>{{cite book |last1=Curtis |first1=John |title=A School and College History of England |date=1860 |publisher=Simpkin, Marshall and Co. |page=139 |url=https://books.google.com/books?id=s71XAAAAcAAJ&q=subpoena+power+originated+king+richard&pg=PA139 |access-date=1 May 2017}}</ref> 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.<ref>[http://www.austlii.edu.au/au/cases/nsw/NSWCA/2015/303.html ''Lowery v Insurance Australia Ltd'' [2015&#93;] NSWCA 303</ref> In [[Victoria (Australia)|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.<ref>{{Cite web|title=What Is a Subpoena?|url=https://www.findlaw.com/litigation/going-to-court/what-is-a-subpoena.html|access-date=2021-04-21|website=Findlaw|language=en-US}}</ref> 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 [[Service of process|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.<ref>{{cite web|url=http://www.mad.uscourts.gov/general/prose-litigants.htm|title=Pro Se Litigants / Representing Yourself}}</ref> 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 in United States law|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.<ref>{{cite web|url=http://www.spolinlaw.com/blog/2016/10/05/los-angeles-criminal-court-subpoenas/|title=Los Angeles Criminal Court Subpoenas / Rules and Regulations|date=5 October 2016}}</ref>

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 (United States)|state court]] in the United States generally ends at that state’s border.<ref name=man>[https://defendermanuals.sog.unc.edu/sites/default/files/pdf/29.1%20Securing%20the%20Attendance%20of%20Witnesses%20by%20Subpoena%20and%20Other%20Process_0.pdf "Securing the Attendance of Witnesses by Subpoena and Other Process,"] ''NC Defender Manual'' Vol. 2, Trial, Chapter 29 (2018).</ref><ref>Rhonda Wasserman (1989). [https://scholarship.law.umn.edu/mlr/2156/ "The Supoena Power: Pennoyer's Last Vestige,"] 74 ''Minnesota Law Review'' 37.</ref> 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.<ref name=gen>Darrell E. White II (May 18, 2021 ). [https://www.naag.org/attorney-general-journal/subpoenaing-out-of-state-witnesses/ "Subpoenaing Out-of-State Witnesses in Criminal Proceedings: A Step-by-Step Guide,"] National Association of Attorneys General.</ref>

'''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]].<ref>{{cite court |url=http://supreme.justia.com/us/365/399/case.html|litigants=Wilkinson v. United States 365 U.S. 399 (1961) |reporter=justia.com|access-date=May 18, 2017}}</ref>

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

* [[Fifth Amendment to the United States Constitution|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.
* [[Priest–penitent privilege|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 [[Physician-patient privilege|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 [[Eavesdropping|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.<ref>{{Cite journal|title=Overall Strategy|url=http://digitalcollections.library.cmu.edu/awweb/awarchive?type=file&item=632639|journal=Carnegie Mellon University Libraries Digital Collections Portal}}</ref><ref>{{Cite web|url=https://www.justice.gov/jm/jm-9-13000-obtaining-evidence|title=US Department of Justice site|date=19 February 2015}}</ref><ref>{{Cite web|url=https://www.cnn.com/2019/04/12/politics/elijah-cummings-subpoena-mazars-usa/index.html|title=Cummings to issue 'friendly subpoena' to Trump accounting firm|author=Lauren Fox and Jeremy Herb|website=CNN|date=12 April 2019|access-date=2019-11-08}}</ref><ref>{{Cite news|url=https://www.nytimes.com/2019/04/15/business/deutsche-bank-trump-finances-congress.html|title=Deutsche Bank Is Subpoenaed for Trump Records by House Democrats|last1=Flitter|first1=Emily|date=2019-04-15|work=The New York Times|access-date=2019-11-08|last2=Enrich|first2=David|language=en-US|issn=0362-4331}}</ref><ref>{{Cite web|url=https://www.newsweek.com/robert-mueller-testify-congress-friendly-subpoena-schiff-1445924|title=Mueller "did not want to testify," wasn't sent a "friendly subpoena," says intelligence committee chairman|last=Croucher|first=Shane|date=2019-06-26|website=Newsweek|language=en|access-date=2019-11-08}}</ref>

==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]].<ref> [https://www.acat.act.gov.au/hearings/subpoenas/conduct-money Conduct money and reasonable costs] ACT Civil & Administrative Tribunal</ref> 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 (Canada)|Superior Court]] are allowed a daily rate of 50.00 [[Canadian dollar|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&nbsp;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&nbsp;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]]

== References ==
{{Reflist}}

==Further reading==
* [https://www.pbs.org/wgbh/pages/frontline/newswar/part1/subpoenas.html "The Press and Subpoenas: An Overview"], by Marlena Telvick and Amy Rubin, ''[[Frontline (American TV program)|Frontline]]'', PBS, February 20, 2010.

{{Authority control}}

[[Category:Writs]]
[[Category:Legal documents]]
[[Category:Legal documents with Latin names]]