Subpoena

Lore & Background

The subpoena has its source in English common law and is now used almost universally throughout the English common law world. John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena during the reign of Richard II. For civil proceedings in England and Wales, it is now described as a witness summons, as part of reforms to replace Latin terms with Plain English understandable to the layman.

Reader's Guide

The subpoena is a fundamental tool in legal proceedings, enabling courts and other government agencies to compel testimony or the production of evidence. Its two primary forms—subpoena ad testificandum and subpoena duces tecum—address the need for oral testimony and physical evidence, respectively. In the United States, judicial subpoenas are issued by federal or state courts, often by the clerk in the judge's name, and lawyers may also issue them as officers of the court. Administrative subpoenas can be issued by many federal agencies without prior judicial oversight, while grand juries and congressional committees also possess subpoena power. Exceptions to compliance include Fifth Amendment protections against self-incrimination, spousal privilege, priest–penitent privilege, attorney–client privilege, physician–patient privilege, diplomatic immunity, and incompetence. A 'friendly subpoena' may be issued to a willing recipient whose cooperation is otherwise barred by legal or ethical duties. Conduct money, paid to cover expenses for attendance, is often required for the subpoena to have legal effect.

Did You Know?

• The term 'subpoena' derives from the Latin phrase sub poena, meaning 'under penalty'.
• John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena during the reign of Richard II.
• In New South Wales, a court may set aside a subpoena as a 'fishing expedition' if the requested documents have no relevance to the proceedings.
• In the United States, the subpoena power of a state court generally ends at that state's border.