Subpoena
A writ compelling testimony or evidence under penalty.
A subpoena (also subpena, subpœna) 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: subpoena ad testificandum, which orders a person to testify, and subpoena duces tecum, which orders a person or organization to bring physical evidence before the ordering authority. The term originates from the Middle English suppena and the Latin phrase sub poena meaning 'under penalty,' and it has its source in English common law, now used almost universally throughout the English common law world.
- type
- Legal writ
- origin
- English common law
- etymology
- Latin sub poena ('under penalty')
- common_types
- Subpoena ad testificandum, subpoena duces tecum
- modern_equivalent
- Witness summons (England and Wales)
- notable_creator
- John Waltham, Bishop of Salisbury (reign of Richard II)
Lore & Background
The subpoena has its source in English common law and is attributed to John Waltham, Bishop of Salisbury, who is said to have created the writ during the reign of Richard II. In civil proceedings in England and Wales, it is now described as a witness summons, part of reforms to replace Latin terms with Plain English. In Australia, courts may set aside a subpoena if it constitutes a 'fishing expedition,' as held in Lowery v Insurance Australia Ltd, where documents requested must have relevance to the proceedings.
Reader's Guide
In the United States, judicial subpoenas are federal or state court orders to produce records or testimony, typically issued by the clerk of the court in the judge's name. Lawyers may also issue subpoenas as officers of the court. Administrative subpoenas can be issued by many federal agencies without prior judicial oversight. Grand juries and congressional committees also have subpoena power. Exceptions to testifying include Fifth Amendment protection against self-incrimination, spousal privilege, priest–penitent privilege, attorney–client privilege, physician–patient privilege, diplomatic immunity, and incompetence. A 'friendly subpoena' is issued to a willing witness whose cooperation is otherwise barred by legal or ethical duties. Conduct money, paid to cover expenses, must often be delivered with the summons for legal effect.
Did You Know?
- The term 'subpoena' comes 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 subpoena may be set aside if it is deemed a 'fishing expedition' with no legitimate forensic purpose.
- In the United States, state court subpoena power generally ends at the state's border.
Frequently Asked Questions
What is a subpoena?
A subpoena is a legal writ issued by a government body, typically a court, that compels a witness to testify or to produce evidence. It carries a penalty for non-compliance, which is the core mechanism behind its authority.
Where does the word 'subpoena' come from?
The term traces back to the Latin phrase 'sub poena,' meaning 'under penalty,' and entered English through Middle English as 'suppena.' It reflects the underlying threat of punishment that gives the writ its force.
What are the two common types of subpoenas?
The subpoena ad testificandum orders an individual to appear and give testimony, while the subpoena duces tecum requires a person or organization to bring physical evidence before the issuing authority.
Who is credited with originating the subpoena?
The subpoena is attributed to John Waltham, Bishop of Salisbury, who served during the reign of Richard II. It grew out of English common law and has since been adopted in legal systems around the world.
What replaced the subpoena in modern England and Wales?
In England and Wales, the traditional subpoena has been largely superseded by the witness summons as the standard mechanism for compelling testimony or document production.
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