Subpoena

A subpoena (/səˈpiːnə/; also subpœna or supenna) 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 subpoena:

  1. subpoena ad testificandum orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
  2. subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.

Etymology

Subpoena usgs
Example of subpoena in the case Anderson v. Cryovac[1]

The term subpoena is from the Middle English suppena and the Latin phrase sub poena meaning "under penalty".[2] It is also spelled "subpena".[3] The subpoena has its source in English common law and it is now used almost with universal application throughout the English common law world. John Waltham, Bishop of Salisbury, is said to have created the writ of subpoena in the reign of Richard II.[4] However, 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.

Process

United States

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. Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer representing the 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. 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 and/or directly to court.[5] 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. [6]

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.

Australia

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. [7]

See also

References

  1. ^ "Example Copy of Subpoena in Anderson v. Cryovac landmark case".
  2. ^ Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).
  3. ^ See, e.g., 18 U.S.C. § 1429; 18 U.S.C. § 3333(c)(1); 18 U.S.C. § 1968(c); and 28 U.S.C. § 1365.
  4. ^ Curtis, John (1860). A School and College History of England. Simpkin, Marshall and Co. p. 139. Retrieved 1 May 2017.
  5. ^ "Pro Se Litigants / Representing Yourself".
  6. ^ "Los Angeles Criminal Court Subpoenas / Rules and Regulations".
  7. ^ Lowery v Insurance Australia Ltd [2015] NSWCA 303

Further reading

  • "The Press and Subpoenas: An Overview," by Marlena Telvick and Amy Rubin, PBS Frontline, February 20, 2010.PBS.org


Original

Administrative subpoena

An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, while proponents say that it provides a valuable investigative tool.

Anonymous post

An anonymous post is an entry on a bulletin board system, Internet forum, or other discussion forums, without a screen name or more commonly by using a non-identifiable pseudonym.

Some online forums such as Slashdot and Techdirt do not allow such posts, requiring users to be registered either under their real name or utilizing a pseudonym. Others like JuicyCampus, AutoAdmit, 2channel, and other Futaba-based imageboards (such as 4chan) thrive on anonymity. Users of 4chan, in particular, interact in an anonymous and ephemeral environment that facilitates rapid generation of new trends.

Compulsory Process Clause

The Compulsory Process Clause of the Sixth Amendment to the United States Constitution allows defendants in criminal cases to secure witnesses in their favor through the issuance of a court-ordered subpoena. The Clause is generally read as allowing defendants to present their own case at trial, though several specific limitations have been announced by the Supreme Court of the United States since this rule began.

Connecticut General Assembly

The Connecticut General Assembly (CGA) is the state legislature of the U.S. state of Connecticut. It is a bicameral body composed of the 151-member House of Representatives and the 36-member Senate. It meets in the state capital, Hartford. There are no term limits for either chamber.

During even-numbered years, the General Assembly is in session from February to May. In odd-numbered years, when the state budget is completed, session lasts from January to June. The governor has the right to call for a special session after the end of the regular session, while the General Assembly can call for a "veto session" after the close in order to override gubernatorial vetoes.

During the first half of session, the House and Senate typically meet on Wednesdays only, though by the end of the session, they meet daily due to increased workload and deadlines.

Contempt of Congress

Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically, the bribery of a U.S. Senator or U.S. Representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a Congressional committee or subcommittee—usually seeking to compel either testimony or the production of requested documents.

Deposition (law)

A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination.

Depositions developed in Canada and the United States in the nineteenth century. Depositions are a part of the discovery process in which litigants gather information in preparation for trial. In nations that do not provide for depositions, testimony is usually preserved for future use by way of live testimony in the courtroom, or by way of written affidavit. Some jurisdictions recognize an affidavit as a form of deposition, sometimes called a "deposition upon written questions." While in common law jurisdictions such as England and Wales, Australia, and New Zealand recording the oral evidence of supporting witnesses ('obtaining a statement') is routine during pre-litigation investigations, having the right to pose oral questions to the opposing party's witnesses before trial is not.

Doe subpoena

A Doe subpoena is a subpoena that seeks the identity of an unknown defendant to a lawsuit. Most jurisdictions permit a plaintiff who does not yet know a defendant's identity to file suit against John Doe and then use the tools of the discovery process to seek the defendant's true name. A Doe subpoena is often served on an online service provider or ISP for the purpose of identifying the author of an anonymous post.

Embroidery Software Protection Coalition

The Embroidery Software Protection Coalition (ESPC) was a United States embroidery industry trade group. Its primary activity was the investigation and prosecution of alleged acts of copyright infringement. The group drew media attention for its campaign of settlement demands against individual buyers as well as sellers of embroidery patterns and software. It drew further attention with a 2006 defamation suit against two individual Internet critics, in which it attempted to subpoena the identities of every subscriber of the critics' electronic mailing list.

Executive privilege

Executive privilege is the power of the President of the United States and other members of the executive branch of the United States Government to resist certain subpoenas and other interventions by the legislative and judicial branches of government in pursuit of information or personnel relating to the executive. The power of Congress or the federal courts to obtain such information is not mentioned explicitly in the United States Constitution, nor is there any explicit mention in the Constitution of an executive privilege to resist such requests from Congress or courts. The Supreme Court of the United States has ruled this privilege may qualify as an element of the separation of powers doctrine, derived from the supremacy of the executive branch in its own area of Constitutional activity.The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon in the context of a subpoena emanating from the judiciary, instead of emanating from Congress. The Court held that there is a qualified privilege, which once invoked, creates a presumption of privilege, and the party seeking the documents must then make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case". Chief Justice Warren Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns. Regarding requests from Congress (instead of from the courts) for executive branch information, as of a 2014 study by the Congressional Research Service, only two federal court cases had addressed the merits of executive privilege in such a context, and neither of those cases reached the Supreme Court.In addition to which branch of government is requesting the information, another characteristic of executive privilege is whether it involves a "presidential communications privilege" or instead a "deliberative process privilege" or some other type of privilege. The deliberative process privilege is often considered to be rooted in common law, whereas the presidential communications privilege is often considered to be rooted in separation of powers, thus making the deliberative process privilege less difficult to overcome. Generally speaking, presidents, congresses and courts have historically tended to sidestep open confrontations through compromise and mutual deference in view of previous practice and precedents regarding the exercise of executive privilege.

Independent Media Center

The Independent Media Center (also known as Indymedia or IMC) is an open publishing network of journalist collectives that report on political and social issues. It originated during the Seattle anti-WTO protests worldwide in 1999 and remains closely associated with the global justice movement, which criticizes neo-liberalism and its associated institutions. Several local branches of the network have been raided by law enforcement over the years.

International Narcotics Control Caucus

The United States Senate Caucus on International Narcotics Control (also known as the Senate Narcotics Caucus) was created to monitor and encourage the U.S. government and private programs seeking to expand international cooperation against drug abuse and narcotics trafficking, and promote international compliance with narcotics control treaties, including eradication.

As a formal organization of the United States Senate, the Caucus has the status of a standing committee. It has subpoena power and is authorized to take testimony of witnesses and to produce books, records, papers, and documents that it deems necessary. In the past it has dealt with international cooperation, eradication, trafficking, interdiction, border control, drug strategies, assessments of Federal programs, and money laundering issues.

The Caucus has held numerous hearings over the years and has issued a number of reports on U.S. narcotics control policy. The primary responsibilities of the INCC have involved monitoring of compliance with international narcotics control treaties and agreements, and oversight of U.S. counter narcotics policy and activities.

Legal process

Legal process (sometimes simply process) is any formal notice or writ by a court obtains jurisdiction over a person or property. Common forms of process include a summons, subpoena, mandate, and warrant. Process normally takes effect by serving in on a person, arresting a person, posting it on real property, or seizing personal property.

Motion to quash

A motion to quash is a request to a court to render a previous decision of that court or a lower judicial body null or invalid. It can arise out of mistakes made by any lawyer in a court proceeding. A lawyer may file a motion to quash if a mistake has been on the part of a court, or if an attorney believes that the issuance of some court document like a subpoena was not done in a legal manner.

For example, a party that receives improper service of process may file a motion to quash.

Poena

In Roman mythology, Poena (also Poine) is the spirit of punishment and the attendant of punishment to Nemesis, the goddess of divine retribution. The Latin word poena, "pain, punishment, penalty", gave rise to English words such as subpoena and pain. The original word is the Ancient Greek poinḗ (ποινή), also meaning “penalty.”

Privilege (law)

A privilege is a certain entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. Land-titles and taxi medallions are pronounced examples of transferable privilege. These can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth. By contrast, a right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth. Various examples of old common law privilege still exist, to title deeds, for example. Etymologically, a privilege (privilegium) means a "private law", or rule relating to a specific individual or institution.

Note that the principles of conduct that members of the legal profession observe in their practice are called Legal ethics. Boniface's abbey of Fulda, to cite an early and prominent example, was granted privilegium, setting the abbot in direct contact with the pope, bypassing the jurisdiction of the local bishop.

One of the objectives of the French Revolution was the abolition of privilege. This meant the removal of separate laws for different social classes (nobility, clergy, and ordinary people), instead subjecting everyone to the same common law. Privileges were abolished by the National Constituent Assembly on August 4, 1789.

Subpoena ad testificandum

A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by other courts in England and the European Continent.

Subpoena duces tecum

A subpoena duces tecum (pronounced in English, but not in Latin ), or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial.

The summons is known by various names in different jurisdictions.The term subpoena duces tecum is used in the United States, as well as some other common law jurisdictions such as South Africa and Canada. The summons is called a "subpoena for production of evidence" in some U.S. states that have sought to reduce the use of non-English words and phrases in court terminology.

The subpoena duces tecum is similar to the subpoena ad testificandum, which is a writ summoning a witness to testify orally. However, unlike the latter summons, the subpoena duces tecum instructs the witness to bring in hand books, papers, or evidence for the court. In most jurisdictions, a subpoena usually has to be served personally.

Warrant canary

A warrant canary is a method by which a communications service provider aims to inform its users that the provider has been served with a secret government subpoena despite legal prohibitions on revealing the existence of the subpoena. The warrant canary typically informs users that there has not been a secret subpoena as of a particular date. If the canary is not updated for the time period specified by the host or if the warning is removed, users are to assume that the host has been served with such a subpoena. The intention is to allow the provider to warn users of the existence of a subpoena passively, without disclosing to others that the government has sought or obtained access to information or records under a secret subpoena.

Secret subpoenas, such as those covered under 18 U.S.C. §2709(c) of the USA Patriot Act, provide criminal penalties for disclosing the existence of the warrant to any third party, including the service provider's users.United States secret subpoenas or national security letters originated in the 1986 Electronic Communications Privacy Act to be used only against those suspected of being agents of a foreign power. This was revised in 2001 under the Patriot Act so that secret subpoenas can be used against anyone who may have information deemed relevant to counter-intelligence or terrorism investigations. The idea of using negative pronouncements to thwart the nondisclosure requirements of court orders and served secret warrants was first proposed by Steven Schear on the cypherpunks mailing list, mainly to uncover targeted individuals at ISPs. It was also suggested for and used by public libraries in 2002 in response to the USA Patriot Act, which would force librarians to disclose the circulation history of any of their patrons.

WikiLeaks-related Twitter court orders

The WikiLeaks-related Twitter court orders were United States Department of Justice 2703(d) orders (so-called because they are authorized by USC 18 2703(d)) accompanied by gag orders (authorized by USC 18 2705(b), both as differentiated from subpoenas and national security letters) issued to Twitter in relation to ongoing investigations of WikiLeaks issued on 14 December 2010. While only five people were individually named within the subpoena, according to lawyer Mark Stephens the order effectively entailed the collection in relation to criminal prosecution of the personal identifying information of over six hundred thousand Twitter users, principally those who were followers of WikiLeaks. The U.S. government also sent Twitter a subpoena for information about Julian Assange and several other WikiLeaks-related persons, including Chelsea Manning. Twitter appealed against the accompanying gag order in order to be able to disclose its existence to its users, and was ultimately successful in its appeal. Subsequent reactions included the discussion of secret subpoenas in the U.S., criticism of the particular subpoena issued, an immediate, temporary 0.5 percent reduction in the number of Twitter followers of WikiLeaks, and calls for the recognition and emulation of Twitter's stance.

This page is based on a Wikipedia article written by authors (here).
Text is available under the CC BY-SA 3.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.