What is a Subpoena and How is it Used?
The word “subpoena” comes from “suppena”, Middle English and “sub poena”, Latin, both meaning “under penalty” It is interesting to note that even though the word has English roots, in England the term subpoena is no longer used but the phrase “written summons” is used instead. Actually, “written summons” is a good, brief description as the definition, according to Wikipedia, 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 types of subpoena, (1) Subpoena ad testificandum which demands a person testify in court in person or sometimes over the phone. (2) Subpoena duces tecum which demands corporation or person to show physical evidence in court. This type of subpoena is sometimes used to require copies of needed documents to be mailed to a requesting party such as an attorney or sent directly to the court. Both types of subpoenas must be complied with or the party being subpoenaed may face a penalty.
The clerk of court usually issues a subpoena in the name of the judge presiding over the case. As an officer of the court, an attorney can also issue a subpoena for reasons such as a deposition or court appearance. It is the responsibility of the attorney to fill out the subpoena and see that it is served, usually by a person such as a sheriff’s deputy or process server. This type of non-party service is used as proof in court that a party has indeed been served. A subpoena will have the name and address of the person being served and will instruct the receiver to report to a particular court or place of deposition or have the required documents available, on a given date and time. In some jurisdictions, it will also remind the party being served that failure to appear or submit required documents is a crime and will be treated as such.
There are a few reasons a person does not have to accept the subpoena. These can include, when proven, the evidence required is privileged or confidential, the witness or evidence has no relevance to the proceedings, and/or in fact the person being subpoenaed has no evidence to present. In some states (Florida being one), the subpoenaing party must file a Notice of Intent to Serve Subpoena, or Notice of Production from Non-Party 10 days before issuing the subpoena. This is done to allow the other party time to file objections when appropriate.
If a person is representing themselves a court clerk will officially issue the subpoena forms when witness testimony or documents are needed. This is important as documents not properly subpoenaed or verified by a witness will be considered hearsay unless accepted by a judge excepted by hearsay rules.
Should you receive a subpoena it is important to comply with whatever is asked of you? If you have questions or feel you should not have been subpoenaed, it is wise to consult with a legal professional. As mentioned above, some jurisdictions consider a failure to appear or provide subpoenaed documents a criminal act and will adjudicate consequences.