Subpoena

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A subpoena (pronounced /səˈpinə/) is "a command to appear at a certain time and place to give testimony upon a certain government matter."Black\'s Law Dictionary, p. 1279 (5th ed. 1979). 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., 18 U.S.C. § 1429; 18 U.S.C. § 3333(c)(1); 18 U.S.C. § 1968(c); and 28 U.S.C. § 1365.

There are two kinds of subpoenas:

1. a subpoena ad testificandum brings people to testify before it;
   
2. a subpoena duces tecum has evidence (documents, tape recordings, photos, guns, etc.) brought to it.
   

Subpoenas are usually issued by the clerk of the court (see below) in the name of the judge presiding over the case in which the witness is to testify. (Additionally, court rules often 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 lodged, 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.

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 However, for Civil proceedings in England and Wales, the term has been replaced by witness summons, as part of reforms to replace Latin terms with easier to understand English terms.

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

After receiving a subpoena from a grand jury one has three choiceshttp://campus.udayton.edu/~grandjur/faq/faq9.htm:

1. comply with the subpoena; (show up or produce the evidence)
2. convince a court that you do not have to comply. (motion to quash)
3. refuse to comply (the court may then hold one in civil contempt)

Quashing the subpoena means the court declares it null and void, so one does not have to comply with it. A court would, for example, quash a subpoena if you could show that making you comply with it would violate your constitutional rights under the First Amendment or would create an undue burden on one to comply.

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 Warshak v. U.S. 490 F.3d 455, *482 (C.A.6 (Ohio),2007). The 1986 federal Stored Communications Act (SCA) was being used to obtained e-mail from ISP\'s without getting warrants and without letting targets of an investigation know. The ruling held the subpoena\'s 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.

Subpoenas and Congress

This short section requires expansion.

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.

See also

• Subpoena duces tecum
• Subpoena ad testificandum
• Summons

Notes

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.

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