subpoena

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Subpoena

[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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

subpena (subpoena)

(suh-pea-nah) n. an order of the court for a witness to appear at a particular time and place to testify and/or produce documents in the control of the witness (if a "subpena duces tecum"). A subpena is used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. The procedure to get a subpena issued is basically to apply to the court with a brief written declaration of the need for the testimony or documents. Such subpenas are usually issued automatically by the court clerk, but must be served personally on the party being summoned. Failure to appear as required by the subpena can be punished as contempt of court if it appears the absence was intentional or without cause. (See: subpena duces tecum, witness, deposition, contempt of court)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

subpoena

a term no longer in use in England and Wales for an order to a person to appear in court on a certain day to give evidence or produce a document.
Collins Dictionary of Law © W.J. Stewart, 2006

SUBPOENA, practice, evidence. A process to cause a witness to appear and give testimony, commanding him to lay aside all pretences and excuses, and appear before a court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is usually called a subpoena ad testificandum.
     2. On proof of service of a subpoena upon the witness, and that he, is material, an attachment way be issued against him for a contempt, if he neglect to attend as commanded.

SUBPOENA, chancery practice. A mandatory writ or process, directed to and requiring one or more persons to appear at a time to come, and answer the matters charged against him or them; the writ of subpoena was originally a process in the courts of common law, to enforce the attendance of a witness to give evidence; but this writ was used in the court of chancery for the game purpose as a citation in the courts of civil and canon law, to compel the appearance of a defendant, and to oblige him to answer upon oath the allegations of the plaintiff.
     2. This writ was invented by John Waltham, bishop of Salisbury, and chancellor to Rich. II. under the authority of the statutes of Westminster 2, and 13 Edw. I. c. 34, which enabled him to devise new writs. 1 Harr. Prac. 154; Cruise, Dig. t. 11, c. 1, sect. 12-17. Vide Vin. Ab. h.t.; 1 Swanst. Rep. 209.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
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