Subpoena
A subpoena (/səˈpiː.nə/;[1] also subpœna, supenna or subpena[2]) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoenas:
Process[edit]
Australia[edit]
In New South Wales, a court may set aside the whole, or part, of a subpoena on the basis that it is a "fishing expedition". In Lowery v Insurance Australia Ltd, the NSW Court of Appeal held that where documents requested in the schedule of a subpoena are deemed to have no relevance to the proceedings in dispute, the subpoena may be set aside as it has no legitimate forensic purpose. It was also held that it was not the role of the Court to redraft the subpoena and narrow its scope to those issues in dispute.[6] In Victoria a subpoena is usually issued by a court registry officer, and does not require leave of the court.
New Zealand[edit]
In New Zealand, subpoenas are governed under the rules of the court in which the subpoena is issued.
United States[edit]
Subpoenas are usually issued by the clerk of the court in the name of the judge presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court.[7] Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer representing the party (plaintiff or defendant) on whose behalf the testimony is to be given to serve the subpoena on the witness. If a witness is reluctant to testify, then the personal service of subpoena is usually required with proof of service by non-party server.
The subpoena will usually be on the letterhead of the court where the case is filed, name the parties to the case, and be addressed by name to the person whose testimony is being sought. It will contain the language "You are hereby commanded to report in person to the clerk of this court" or similar, describing the specific location, scheduled date and time of the appearance. Some issuing jurisdictions include an admonishment advising the subject of the criminal penalty for failure to comply with a subpoena, and reminding him or her not to leave the court facilities until excused by a competent authority, often ending with the archaic threat "Fail not at your peril." In some situations, the person having to testify or produce documents is paid.
Pro se litigants who represent themselves, unlike lawyers, must ask a court clerk to officially issue them subpoena forms when they need to call witnesses by phone or in person, or when they need to officially request documents to be sent to them or directly to court.[8] Any documents that have not been subpoenaed to court or verified by a witness may be dismissed by the opposite party as hearsay, unless excepted by hearsay rules or permitted by the judge. If the witness is called via long-distance phone call, then the requesting party is responsible for initiating the call and providing a payment with a prepaid phone card. Most states (including California) have further restrictions on subpoena use in criminal cases.[9]
Some states (as is the case in Florida) require the subpoenaing party to first file a Notice of Intent to Serve Subpoena, or a Notice of Production from Non-Party ten days prior to issuing the subpoena, so that the other party may have ample time to file any objections.
Also, the party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged.
Standing committees in both houses of the United States Congress have the authority to send out subpoenas for legitimate lawmaking and investigation purposes. This compels the production of testimony or records, and failure to respond constitutes contempt of Congress.[10]
There are several exceptions to being required to testify in court, including the following examples:
"Friendly subpoena"[edit]
A "friendly subpoena" is a subpoena that is issued to an individual or entity who might otherwise testify or submit evidence willingly without a subpoena, but is prevented from doing so due to a higher order legal, ethical or regulatory loyalty or fiduciary responsibility, which can only be superseded by a subpoena. It is called a "friendly" subpoena because the recipient would otherwise be or is very likely to be willing to cooperate with the investigation at issue, once issued a subpoena.[11][12][13][14][15]