A subpoena is a writ, a written order, issued by a court which commands a person to appear in court or before a grand jury, a congressional committee, or administrative agency at a specific place and time.
The subpoena can compel the receiver to appear in court or before an administrative body as a witness, or to produce documents for a court proceeding. Legislative investigating committees also rely on subpoenas to obtain testimony, and they can use subpoenas to compel witnesses to appear in investigations of political scandals. Without a subpoena, a witness is not legally required to appear before the court.
Types of Subpoenas
There are two main types of subpoenas:
- Subpoenas ad testificandum
- Subpoenas duces tecum
A subpoena ad testificandum, also known as an ordinary subpoena, literally means "to testify under penalty." It commands a person to appear at a particular location to give testimony. The most common use of a subpoena is to require a witness to attend a trial.
A subpoena duces tecum, also known as a subpoena for production of evidence, literally means "bring with you under penalty." It commands a person to appear at a particular location to bring a specified item for use or examination in a legal proceeding. A recipient of a subpoena duces tecum is commonly required to present documents, such as personal papers and business records, and physical evidence to the court.
A subpoena duces tecum is used most often in civil lawsuits when one party refuses to give 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 subpoena differs from a summons in this regard, because the subpoena can require the production of evidence, while a summons can only order a person to appear in court.
The general elements of the subpoena include:
- A listing of the legal proceeding at issue
- The names of the parties involved
- The name of the person being ordered to appear
- A list of the documents that must be presented if a subpoena compels the production of evidence
- The time and place of the legal proceeding where the subpoena recipient must appear
The subpoenas of some jurisdictions also include a warning about the penalties for failing to comply with the subpoena.
Serving a Subpoena
With regards to the legal process, a subpoena has to be served on the person who is being compelled to appear. The specific rules related to the subpoena process vary in every jurisdiction. Some states require the subpoena to be personally served by a law enforcement officer, and other states allow the subpoena to be served by mail. The attorneys in a case have to request subpoenas, which are usually issued by the trial court clerk's office. The court rules of some jurisdictions allow attorneys to issue subpoenas themselves as officers of the court.
Failure to Comply
Subpoena literally means "under penalty," and failing to comply with a subpoena can result in a legal penalty, as noncompliance constitutes contempt of court. However, subpoenas can be challenged, and a person refusing to comply with a subpoena can request a hearing.
Congress can also punish individuals who fail to comply with a subpoena to appear before Congress by holding an individual in contempt of Congress, which is similar to contempt of court. A person who is charged with contempt of court can be subjected to criminal or civil penalties. A person who fails to comply with a subpoena may also be brought to the legal proceeding at issue by a law enforcement officer, after the officer serves a second subpoena, called an instanter.
Questions for Your Attorney
- I've scheduled a trip and don't want to appear in court on the day listed in the subpoena. What should I do?
- What should I do if I can't find the documents that are requested in the subpoena duces tecum?
- Do I have to pay the costs of traveling to the deposition as requested in a subpoena?