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A subpoena ( /səˈp.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 the testimony to 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 requesting party or directly to court.


Example of subpoena in the case Anderson v. Cryovac Subpoena usgs.jpg
Example of subpoena in the case Anderson v. Cryovac

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 in 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.



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. 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. 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. 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. [7] 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. [8]

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.

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. [9]

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

Fifth Amendment - Under the Fifth Amendment to the American constitution, no person shall be compelled to be a witness against themselves. Witnesses can't be forced to testify if the testimony will incriminate them. This right can, however, be denied 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 exists as a consequence of the Fifth Amendment and the "One flesh" concept of Marriage. Under this rule, since married spouses are joined together in one flesh, they shouldn't 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 involve clients being completely honest, without having to fear the consequences.

Lawyers - In order to get the best legal advice, clients must tell all details to their lawyer without fear of consequences, so therefore communication with a lawyer is protected, and a lawyer can't be forced to testify against a client.

Doctors - Doctors are forbidden from disclosing patient documents without the patient's permission, under the law of Patient Confidentiality. Therefore, a doctor's testimony against a patient is a violation of their oath. As a result, doctors can never be forced 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 issues, which can affect their ability to truthfully recall events. They also may not be physically fit to appear in court.

Inadmissible Evidence - If the evidence is illegally obtained, it is not admissible in court. For example, someone who sneaks onto private property, and overhears a private conversation between 2 spouses will not be allowed to testify in court. The same goes for illegally recorded conversations, illegally taken photos, or eavesdropped conversations. For example, if a burglar broke into a home and discovered drugs inside, their evidence 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. [10] [11] [12] [13] [14]

See also

Related Research Articles

An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as an expert. The judge may consider the witness's specialized opinion about evidence or about facts before the court within the expert's area of expertise, to be referred to as an "expert opinion". Expert witnesses may also deliver "expert evidence" within the area of their expertise. Their testimony may be rebutted by testimony from other experts or by other evidence or facts.

In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what he or she knows or claims to know.

A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination.

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.

Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution. However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its own area of Constitutional activity.

A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.

Discovery (law) Pre-trial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

Self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another [person] in a criminal prosecution or the danger thereof". Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

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In the common law, spousal privilege is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by other courts in England and the European continent.

United States v. Hubbell, 530 U.S. 27 (2000), was United States Supreme Court case involving Webster Hubbell, who had been indicted on various tax-related charges, and mail and wire fraud charges, based on documents that the government had subpoenaed from him. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has, since 1976, applied the so-called “act-of-production doctrine.” Under this doctrine, a person can invoke his Fifth Amendment rights against the production of documents only where the very act of producing the documents is incriminating in itself.

Witness immunity from prosecution occurs when a prosecutor grants immunity to a witness in exchange for testimony or production of other evidence.

Richardson v. Perales, 402 U.S. 389 (1971), was a case heard by the United States Supreme Court to determine and delineate several questions concerning administrative procedure in Social Security disability cases. Among the questions considered was the propriety of using physicians' written reports generated from medical examinations of a disability claimant, and whether these could constitute "substantial evidence" supportive of finding nondisability under the Social Security Act.

Fifth Amendment to the United States Constitution Article of amendment to the U.S. Constitution, as part of the Bill of Rights, enumerating rights related to trials and due process thereof.

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In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding.

Kastigar v. United States, 406 U.S. 441 (1972), was a United States Supreme Court decision that ruled on the issue of whether the government's grant of immunity from prosecution can compel a witness to testify over an assertion of the Fifth Amendment privilege against self-incrimination.

Wisconsin circuit courts

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<i>In re: Don McGahn</i> American lawsuit regarding checks and balances between the Executive and Legislative Branches

In re: Don McGahn is a U.S. constitutional case lawsuit (1:19-cv-02379) filed in the United States District Court for the District of Columbia by the House Judiciary Committee to compel the testimony of former White House Counsel Donald F. McGahn, Jr. under subpoena. McGahn was put under subpoena to testify regarding his knowledge of the Russia investigation and Mueller Report and whether President Donald Trump's actions could constitute obstruction of justice. The case gained importance as the House launched impeachment proceedings against Trump regarding the Trump–Ukraine scandal.


  1. "subpoena". Cambridge English Dictionary . Cambridge University Press. Archived from the original on 9 February 2018. Retrieved 10 November 2019.
  2. 1 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. "Example Copy of Subpoena in Anderson v. Cryovac landmark case".
  4. Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).
  5. Curtis, John (1860). A School and College History of England. Simpkin, Marshall and Co. p. 139. Retrieved 1 May 2017.
  6. Lowery v Insurance Australia Ltd [2015] NSWCA 303
  7. "Pro Se Litigants / Representing Yourself".
  8. "Los Angeles Criminal Court Subpoenas / Rules and Regulations".
  9. Wilkinson v. United States 365 U.S. 399 (1961), .
  10. "Overall Strategy". Carnegie Mellon University Libraries Digital Collections Portal.
  11. "US Department of Justice site".
  12. Lauren Fox and Jeremy Herb. "Cummings to issue 'friendly subpoena' to Trump accounting firm". CNN. Retrieved 2019-11-08.
  13. Flitter, Emily; Enrich, David (2019-04-15). "Deutsche Bank Is Subpoenaed for Trump Records by House Democrats". The New York Times. ISSN   0362-4331 . Retrieved 2019-11-08.
  14. EDT, Shane Croucher On 6/26/19 at 4:17 AM (2019-06-26). "Mueller "did not want to testify," wasn't sent a "friendly subpoena," says intelligence committee chairman". Newsweek. Retrieved 2019-11-08.

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