A subpoena is a court order that compels a person to appear for the purpose of giving testimony at a trial or a pretrial proceeding, such as a preliminary examination or pretrial deposition. A court also can issue a subpoena for documents or other items of tangible evidence. Parties to civil suits, and the prosecution in criminal cases, had a common law right to compel testimony before the creation of the Constitution. The Sixth Amendment provides defendants in criminal cases a basis for fairly presenting their defense by giving them the power to subpoena witnesses. The government in some circumstances may have an affirmative duty to help a defendant find a witness, such as a government informer, or to refrain from restricting the defendant's ability to locate a witness essential to the presentation of a defense.
The Sixth Amendment, in part, provides that accused persons have the right of witnesses and the right "to have compulsory process" for obtaining witnesses in their behalf. The confrontation and compulsory process clauses permit the defendant to use the power of the courts to obtain witnesses and they limit governmental interference with the defendant's ability to examine witnesses at trial. These clauses have been incorporated into the fourteenth amendment by the Supreme Court; thus they govern both federal and state prosecutions.
A defendant may compel a person to testify in a court proceeding by applying to the court for a subpoena ordering the person to appear in court or at a pretrial hearing. However, the defendant's ability to use the court's subpoena power is not unlimited. A court can require a defendant to provide it with information that justifies the production of the witness.
When a defendant has a court issue a subpoena to a witness, the witness normally is entitled to a statutory fee to offset his expenses for attendance at the judicial proceeding. An indigent defendant may use the court's subpoena power to compel witnesses to testify in his behalf even though he cannot pay the witness fee. In these circumstances, however, a court may require the indigent defendant to show that the persons whom he subpoenas are likely to give testimony relevant to the charge.
An indigent defendant may try to use the subpoena power to compel an expert (such as a psychiatrist or a ballistics expert) to attend court to testify on the defendant's behalf. Whether the government must pay the cost for providing the defendant with an expert witness is primarily a due process, rather than a subpoena power, issue. However the issue be phrased, courts must determine whether, under the circumstances of the case, a fair trial depends on government provision of the expert witness.
The Sixth Amendment's confrontation clause, together with the compulsory process clause, restricts the government's ability to limit the testimony of potential defense witnesses and the cross-examination of prosecution witnesses. If a person who has received a subpoena to give testimony believes that his testimony would not be relevant to the trial, or that his testimony is subject to an evidentiary privilege, he may move to quash the subpoena. A witness may assert a constitutionally based privilege, such as the right against self-incrimination, or a common law or statutory privilege, such as a doctor-patient privilege. One who has no such privilege may not refuse to respond to the subpoena or refuse to give testimony.
John E. Nowak
Wright, Charles Alan and Graham, K. 1980 Federal Practice and Procedure: Evidence. Section 5436. St. Paul, Minn.: West Publishing.
[Latin, Under penalty.] A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony.
A court, grand jury, legislative body, or administrative agency uses a subpoena to compel an individual to appear before it at a specified time to give testimony. An individual who receives a subpoena but fails to appear may be charged with contempt of court and subjected to civil or criminal penalties. In addition, a person who has been served with a subpoena and has failed to appear may be brought to the proceedings by a law enforcement officer who serves a second subpoena, called an instanter.
A subpoena must be served on the individual ordered to appear. In some states a law enforcement officer or process server must personally serve it, whereas other states allow service by mail or with a telephone call. It is most often used to compel witnesses to appear at a civil or criminal trial. A trial attorney may
receive an assurance from a person who says that she will appear in court on a certain day to testify, but if a subpoena is not issued and served on the witness, she is not legally required to appear.
It is up to the attorneys in a case to request subpoenas, which are routinely issued by the trial court administrator's office. The subpoena must give the name of the legal proceedings, the name of the person who is being ordered to appear, and the time and place of the court hearing.
Legislative investigating committees also issue subpoenas to compel recalcitrant witnesses to appear. Congressional investigations of political scandal, such as the watergate scandals of the Nixon administration, the iran-contra scandal of the Reagan administration, and the whitewater scandal of the Clinton administration, rely on subpoenas to obtain testimony.
A subpoena that commands a person to bring certain evidence, usually documents or papers, is called a subpoena duces tecum, from the Latin "under penalty to bring with you." This type of subpoena is often used in a civil lawsuit where one party resists giving the other party documents through the discovery process. If a court is convinced that the document request is legitimate, it will order the production of documents using a subpoena duces tecum.
A party may resist a subpoena duces tecum by refusing to comply and requesting a court hearing. One of the most famous refusals of a subpoena was richard m. nixon's reluctance to turn over the tape recordings of his White House office conversations to the Watergate special prosecutor. Nixon fought the subpoena all the way to the Supreme Court in united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). The Court upheld the subpoena, leading Nixon to resign his office a short time later.
sub·poe·na / səˈpēnə/ Law • n. (in full subpoena ad testificandum) a writ ordering a person to attend a court: a subpoena may be issued to compel their attendance | they were all under subpoena to appear. • v. (-nas , -naed / -nəd/ , -na·ing ) [tr.] summon (someone) with a subpoena: the Queen is above the law and cannot be subpoenaed. ∎ require (a document or other evidence) to be submitted to a court of law: the decision to subpoena government records.
SUBPOENA. SeePresidents and Subpoenas .