A subpoena is a written order issued by a court, commanding a person to appear -- before a judge, a grand jury, a congressional committee, or an administrative agency -- at a specific place and time.
The subpoena can compel the recipient to appear in court or before an administrative body as a witness, or to produce documents for a court proceeding, including civil lawsuits. Legislative investigating committees also rely on subpoenas to obtain testimony, and they can use subpoenas to compel witnesses to appear in investigations of potential political wrongdoing. Without a subpoena, a witness is not legally required to appear before the court.
Types of Subpoenas
There are two main types of subpoenas:
- witness subpoenas, and
- subpoenas duces tecum.
A witness subpoena (sometimes referred to as a subpoena ad testificandum) commands a person to appear at a particular location to give testimony (in person or, in modern times, electronically). The most common use of a subpoena is to require a witness to appear and give testimony at a trial.
A subpoena duces tecum, also known as a subpoena for production of evidence, commands a person to appear at a particular location with a specified item (owned by that person or under his or her control) for use or examination in a legal proceeding. The 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 the 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 instance in that the subpoena can require the production of evidence, while a summons can only order a person to appear in court.
What's Included in a Subpoena?
The general elements of a subpoena consist of:
- identification of the legal proceeding (including names of the parties involved in the case or proceeding)
- name of the person being ordered to appear
- a detailed list of the records that must be produced (if subpoena duces tecum is issued), and
- the time and place of the legal proceeding where the subpoena recipient must appear.
The subpoenas of most jurisdictions also include a clear warning about the penalties for failing to comply with the subpoena.
Serving a Subpoena
Like many other legal documents, a subpoena has to be properly served on the person who is being compelled to appear. 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 must usually make a formal request for a subpoena, and if granted, the subpoena is 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. (Learn more about Process Serving in a Civil Case.)
Failure to Comply With a Subpoena
Failing to comply with a subpoena can result in a legal penalty, as noncompliance almost always constitutes "contempt of court," which can lead to the imposition of fines and/or jail time.
Subpoenas can also be challenged, and a person refusing to comply with a subpoena can request a hearing, but that won't usually ward off a "contempt" finding, at least not in the short term.
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 my deposition as requested in the subpoena?