Simone Lawson
A subpoena is a legal, written order compelling an individual to give testimony on a particular subject at a specific time and place, or to provide documents or other tangible objects. The word subpoena is derived from the Latin phrase sub poena, meaning under penalty. While the word subpoena is not explicitly mentioned in the US Constitution, the document does grant Congress the power to investigate and perform lawmaking duties through compulsory processes, which includes the use of subpoenas. This power is known as the 'subpoena power' and is generally immune from judicial interference, as established by the Supreme Court in the case of Eastland v. U.S. Servicemen's Fund.
| Characteristics | Values |
|---|---|
| Definition | A subpoena, which means 'under penalty', is a writ or administrative summons issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. |
| Types | Subpoena ad testificandum, Subpoena duces tecum, Deposition Subpoena |
| Issuing Authority | Attorney on behalf of the court, Court clerk, Notary public, Justice of the peace, Administrative agencies, Clerks of Court, Lawyers |
| Service | Personal delivery, Email, Certified mail, Reading aloud |
| Rights of the subpoenaed | Understand the scope of the subpoena, Seek legal counsel, Challenge the subpoena, Postpone testimony |
| Consequences of Non-Compliance | Punishable as contempt of court, Default judgement, Criminal penalty |
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What You'll Learn
What is a subpoena?
A subpoena is a legal, written order compelling an individual to give testimony on a particular subject at a specific time and place, or to produce documents or other tangible objects. The term subpoena is derived from the Middle English "suppena" and the Latin phrase "sub poena", meaning "under penalty". It is also spelled "subpena".
There are two common types of subpoenas: a subpoena ad testificandum, which orders an individual to testify before the ordering authority or face punishment, and a subpoena duces tecum, which orders an individual or organisation to bring physical evidence before the ordering authority or face punishment. A deposition subpoena is a court order requiring a person who is a third party, not a party to a lawsuit, to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit.
A subpoena is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace. It may be served on an individual either through personal delivery, email, certified mail or even by reading it out aloud. A subpoena is very specific to a situation, and the requirements, expectations, and timing will vary from one ruling to another.
If an individual is served with a subpoena, they have certain rights and responsibilities. They have the right to understand the scope of the subpoena and their obligations under the law, including the right to seek legal counsel to determine the appropriate course of action. They also have the right to challenge the subpoena if there are valid grounds for objection.
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Who can issue a subpoena?
A subpoena is a legal document issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. It is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace. A subpoena may be served on an individual either through personal delivery, email, certified mail or even by reading it out aloud.
In some jurisdictions, clerks of court or court administrators may be empowered to issue subpoenas. This may be done for very niche, specific reasons such as summoning jurors. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court.
Certain administrative agencies, such as government regulatory bodies or investigative commissions, may also have the authority to issue subpoenas. These subpoenas are typically used to gather information or testimony related to regulatory compliance.
In the US, subpoenas have been issued by Congress, and the Supreme Court has concluded that the Speech or Debate Clause shields Congressmen from suit to block a Congressional subpoena. The subpoena power of Congress is not entirely immune from challenge, and a challenge may proceed if it is not directed at Congress or its Members.
In the context of universities, subpoenas are typically subpoenas for records, addressed to the "Custodian of Records" or a specific department. A subpoena to a particular named person can only be accepted by that person, with some exceptions, such as when the person is a peace officer.
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What does it mean to be served with a subpoena?
A subpoena is a writ or administrative summons issued by a government agency, most commonly a court, to compel testimony by a witness or the production of evidence under a penalty for failure. The term subpoena is derived from the Middle English "suppena" and the Latin phrase "sub poena", which means "under penalty".
Being served with a subpoena means that you are legally required to either testify as a witness at a specified time and place or to produce documents or other tangible objects in a legal proceeding. A subpoena can be issued by any attorney, a self-represented individual, or a service hired by an attorney, using court-supplied forms. It is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public, or justice of the peace. A subpoena may be served on an individual either through personal delivery, email, certified mail, or even by reading it out aloud.
There are two common types of subpoenas: a subpoena ad testificandum, which orders a person to testify before the ordering authority or face punishment, and a subpoena duces tecum, which 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.
If you are served with a subpoena, legal experts recommend double-checking the hearing date and time and rearranging your schedule to ensure your presence, as well as understanding the scope of the subpoena and your obligations under the law. This includes allowing you the right to seek legal counsel to determine the appropriate course of action.
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What are the types of subpoenas?
A subpoena is a formal written order that requires a person to appear before a court or other legal proceedings to testify or produce documentation. It is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace.
There are several types of subpoenas, including:
Subpoena Duces Tecum
The Subpoena Duces Tecum, commonly known as SDT, is used when the party requesting the subpoena seeks not only the testimony of a witness but also specific documents, records, or tangible evidence in their possession. This type of subpoena is especially valuable in civil cases, where relevant documents and evidence are crucial to substantiate claims or defences. The recipient of an SDT is legally obligated to produce the requested documents along with appearing for testimony.
Witness Subpoena
A witness subpoena 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. This type of subpoena can also request that the testimony be given by phone or in person.
Deposition Subpoena
A deposition subpoena is a court order requiring a person who is a third party—not a party to a lawsuit—to provide copies of records and/or appear at a deposition to answer questions asked by one of the parties involved in the lawsuit. This type of subpoena is frequently used to preserve testimony and gather evidence before a trial, ensuring that witness statements are recorded and can be used during the trial proceedings.
Subpoena for Records Deposition
When certain records are held by an institution, corporation, or government agency, and those records are crucial for a case, a Subpoena for Records Deposition can be issued. This subpoena compels the custodian of records to produce the requested documents or records for inspection and copying.
Subpoena to Attend Grand Jury
A Subpoena to Attend Grand Jury is employed in criminal cases where the grand jury is investigating potential criminal conduct.
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What to do if you receive a subpoena?
A subpoena is a formal order served on individuals and companies, typically seeking testimony or documents. If you receive a subpoena, it is important to not panic, but also to not ignore it. Failure to comply with a subpoena can have serious consequences, including fines for contempt and the waiver of certain rights. Here are the steps you should take if you receive a subpoena:
- Preserve all relevant documents and electronic information: Ensure that no documents, including emails, that could possibly relate to the subpoena are destroyed or thrown away. Contact your IT department to turn off auto-delete protocols on relevant email accounts.
- Contact a lawyer: Get in touch with an attorney right away, preferably one with experience in this area of the law. They can help you determine if the subpoena is valid and if there are any grounds for objection.
- Understand the scope of the subpoena: Figure out what the subpoena is for and why you are being summoned as a witness. The subpoena will provide details on the specific location, scheduled date and time of the appearance, as well as the nature of the testimony or evidence being sought.
- Respond in a timely manner: Prepare a proper response to the subpoena, ensuring that you preserve your rights while complying with court rules. An incorrect response or failure to respond can result in serious consequences.
- Maintain confidentiality: Do not speak about the subpoena or the underlying lawsuit or investigation with anyone other than your attorney or individuals within your company who need to know. If there are confidentiality agreements with third parties, consult your lawyer before disclosing any information.
- Negotiate if necessary: If the subpoena seeks a large volume of documents, your lawyer may be able to negotiate to limit the scope or request additional time for compliance.
Remember, it is important to act promptly when dealing with a subpoena to ensure that you protect your rights and comply with legal requirements.
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Frequently asked questions
No, the word "subpoena" is not in the US Constitution. However, the constitution does grant Congress the power to investigate and obtain information, which includes the ability to issue subpoenas.
A subpoena is a legal, written order that requires an individual to give testimony on a particular subject at a specific time and place, or to provide documents or other tangible objects. Failure to comply with a subpoena may be punishable as contempt.
Yes, a subpoena can be challenged on constitutional grounds if it is not directed at Congress or its members. However, the lawfulness of a subpoena is typically only challenged after Congress seeks to enforce it through civil action or contempt of Congress.
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