Subpoena

Subpoena

A subpoena (pronEng|səˈpiːnə) is commonly defined as a written command to a person to testify before a court or be punished.

More accurately, a subpoena is the conditional threat of punishment made by a governmental authority. It is attached to a command, so that if the recipient does not do as commanded then he may be punished. Subpoenas are associated with common law legal systems.

There are two common types of subpoenas:
*A subpoena ad testificandum orders a person to testify before the ordering authority or face punishment.
*A subpoena duces tecum orders a person to bring physical evidence before the ordering authority or face punishment.

Etymology

The term is from the Middle English "suppena" and the Latin phrase "sub poena" meaning "under penalty." [Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).] The term may also be spelled "subpena." [See, e.g., usc|18|1429; uscsub|18|3333|c|1; uscsub|18|1968|c; and usc|28|1365.]

The subpoena has its source in English common law and it is now used almost with universal application throughout the Anglo-American 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 However, for Civil proceedings in England and Wales, the term has been replaced by "witness summons", as part of reforms to replace Latin terms with English terms which are easier to understand.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. [http://www.lectlaw.com/def2/s083.htm, url retrieved 2008-06-26.]

ubpoena 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.

ubpoenas in the United States

Issuance of subpoenas in civil matters in U.S. Federal courts

In non-criminal matters in U.S. Federal courts, the rules of procedure provide (in part):

::(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of:

:::(A) a court in which the attorney is authorized to practice; or

:::(B) a court for a district in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which the attorney is authorized to practice. [Rule 45(a)(3), Federal Rules of Civil Procedure.]

Many state courts in the U.S. have adopted similar procedures.

Responding to a subpoena

An individual who receives a subpoena from a grand jury has three choices [ [http://campus.udayton.edu/~grandjur/faq/faq9.htm How does a grand jury get evidence ] ] :
# comply with the subpoena; (show up or produce the evidence)
# convince a court that you do not have to comply. (motion to quash)
# refuse to comply (the court may then hold the person to whom the subpoena was issued in civil contempt)

Quashing the subpoena means the court declares it null and void, so one does not have to comply with it. For example, a court could quash a subpoena if the subject of the subpoena can show that compliance creates an undue burden.

Recently the Sixth U.S. Circuit Court of Appeals in Ohio upheld a ruling that placed a temporary injunction on e-mail searches with subpoenas, for violation of the Fourth Amendment [http://cases.justia.com/us-court-of-appeals/F3/490/455/ "Warshak v. United States", 490 F.3d 455, 482 (6th Cir. 2007).] . The 1986 federal Stored Communications Act (SCA) was being used to obtain e-mail from ISPs without warrants and without informing the targets of the investigation. The court held that subpoenas for emails need to include "prior notice and an opportunity to be heard" for the email account holder when the user has a reasonable expectation for privacy relating to the emails.

When considering whether to quash a federal subpoena, make sure the subpoena is not procedurally defective. Remember, the party who serves the subpoena must remember to (1) tender the required witness fees; (2) tender the estimated mileage; (3) properly state the civil action number; and (4) and state the method for recording deposition testimony.Fact|date=September 2008

ubpoenas and Congress

The United States Congress also has the power to issue subpoenas and can punish individuals who fail to comply by contempt of Congress, which is similar to contempt of court.

ubpoena Service Procedures

Most states in United States have established procedures for service of process in regard to subpoenas duces tecum (subpoena for records or information subpoena) and subpoena ad testificandum (witness subpoena). In most cases one of the requirements for serving a subpoena is a mandatory subpoena fee which must be given to the recipient of the subpoena. In New York the fee may be $45.00 for US District Court cases, $20 for Supreme Court State of New York cases or $15.00 for Civil Court of the City of New York, Small Claims Part. A subpoena must usually be served by a party not involved in the litigation proceedings, usually a subpoena process server.In many parts of New York, Nevada and other states the person serving the subpoena must be duly authorized by obtaining an official license for legal process serving. Another requirement for effecting service of process of a subpoena is issuing a subpoena affidavit of service after serving the subpoena and filing it with the corresponding court.

ee also

* continuance
*Subpoena duces tecum
*Subpoena ad testificandum
*Summons
*Subpoena phishing

Notes

[http://www.subpoenadelivery.com]

Additional Readings

* "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2007. [http://www.pbs.org/wgbh/pages/frontline/newswar/part1/subpoenas.html] 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.


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Look at other dictionaries:

  • subpoena — sub·poe·na 1 also sub·pe·na /sə pē nə/ n [Latin sub poena under penalty]: a writ commanding a designated person upon whom it has been served to appear (as in court or before a congressional committee) under a penalty (as a charge of contempt) for …   Law dictionary

  • Subpoena — est un terme juridique du droit anglo saxon. Il s agit d un mot latin entré dans la langue juridique anglaise sous la forme supenna au XVe siècle[1]. Originalement, il s agissait de deux mots latin, sub et poena signifiant, littéralement… …   Wikipédia en Français

  • Subpoena — Subpoena, es un término jurídico usado en el Derecho anglosajón para referirse a una orden, citación o requerimiento de comparecencia ante un órgano gubernamental, por lo general los tribunales de justicia, para la producción de un testimonio… …   Wikipedia Español

  • subpoena — Law ► NOUN ▪ a writ ordering a person to attend a court. ► VERB (subpoenas, subpoenaed or subpoena d, subpoenaing) ▪ summon with a subpoena. ORIGIN from Latin sub poena under penalty (the first words of the writ) …   English terms dictionary

  • subpoena — n. m. (Québec) DR Citation à comparaître devant un tribunal; acte par lequel cette citation est signifiée. Recevoir un subpoena …   Encyclopédie Universelle

  • subpoena — [n] writ command, court order, decree, mandate, summons, warrant, written order; concept 318 subpoena [v] issue a writ cite, order to testify, serve a court order, serve notice, summon; concept 318 …   New thesaurus

  • Subpoena — Sub*p[oe] na, v. t. [imp. & p. p. {Subp[oe]naed}; p. pr. & vb. n. {Subp[oe]naing}.] (Law) To serve with a writ of subp[oe]na; to command attendance in court by a legal writ, under a penalty in case of disobedience. [1913 Webster] …   The Collaborative International Dictionary of English

  • Subpoena — Sub*p[oe] na, n. [NL., fr. L. sub under + poena punishment. See {Pain}.] (Law) A writ commanding the attendance in court, as a witness, of the person on whom it is served, under a penalty; the process by which a defendant in equity is commanded… …   The Collaborative International Dictionary of English

  • Subpoena — Subpoena, (lat.), unter Androhung einer Strafe, z.B. S. p. Confessi et convicti, unter Androhung der Strafe des Eingeständnisses u. der Überführung …   Pierer's Universal-Lexikon

  • subpoena — (n.) early 15c., sub pena, from M.L. sub poena under penalty, the first words of the writ commanding the presence of someone under penalty of failure, from L. sub under (see SUB (Cf. sub )) + poena, ablative of poena penalty (see PENAL (Cf.… …   Etymology dictionary

  • subpoena — [sə pē′nə] n. [ME suppena < ML subpena < L sub poena, lit., under penalty: see SUB & PAIN] a written legal order directing a person to appear in court to give testimony, show specified records, etc. vt. subpoenaed, subpoenaing 1. to summon… …   English World dictionary

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