A
subpoena ( or ) is a
writ issued by a
court that commands the presence of a
witness to
testify, under a penalty for failure.
Subpoenas are associated with
common law legal systems.
There are two common types of subpoena:
- 2 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". The term may also be spelled "subpena", particularly in the United States.
The subpoena has its source in
English common law and it is now used almost with universal application throughout the English 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England and Wales, the term has been replaced by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.
Subpoena 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. In some situations the person is paid.
See also
