What is a subpoena and what is its primary function?

A subpoena is a writ, which is a formal written order, issued by a government agency, most commonly a court. Its primary function is to compel testimony from a witness or the production of evidence, with a penalty imposed for failure to comply.

What are the common alternative spellings for the term 'subpoena'?

The term 'subpoena' can also be spelled as 'subpœna,' 'supenna,' or 'subpena.'

Can you describe the two main types of subpoenas?

There are two common types of subpoenas: a *subpoena ad testificandum*, which orders a person to testify before the ordering authority (either by phone or in person) or face punishment; and a *subpoena duces tecum*, which orders a person or organization to bring physical evidence before the ordering authority, or to mail copies of documents to a requesting party or directly to a court, also under penalty for failure.

What is the etymological origin of the word 'subpoena'?

The term 'subpoena' originates from the Middle English 'suppena' and the Latin phrase 'sub poena,' which literally means 'under penalty.'

From which legal system does the subpoena derive, and who is credited with its creation?

The subpoena has its source in English common law and is now used almost universally throughout the English common law world. John Waltham, who was the Bishop of Salisbury, is said to have created the writ of subpoena during the reign of Richard II.

How has the terminology for a subpoena changed in England and Wales for civil proceedings?

For civil proceedings in England and Wales, the term 'subpoena' is now described as a 'witness summons.' This change is part of reforms aimed at replacing Latin legal terms with Plain English that is more easily understandable to the general public.

What is the significance of the image provided in the source material regarding subpoenas?

The source material includes an image that serves as an example of a subpoena used in the notable legal case *Anderson v. Cryovac*, illustrating a real-world application of the legal document.

Under what circumstances might a subpoena be set aside in New South Wales, Australia?

In New South Wales, Australia, a court may set aside the whole or part of a subpoena if it is considered a 'fishing expedition.' This occurs when the requested documents are deemed to have no relevance to the proceedings in dispute, thus lacking a legitimate forensic purpose. The court is not obligated to redraft the subpoena to narrow its scope.

How are subpoenas typically issued in Victoria, Australia?

In Victoria, Australia, a subpoena is usually issued by a court registry officer and does not require prior leave or permission from the court.

Who is responsible for governing subpoenas in New Zealand?

In New Zealand, subpoenas are governed under the specific rules of the court in which the subpoena is issued.

Who typically issues subpoenas in the United States, and who is responsible for serving them?

In the United States, subpoenas are usually issued by the clerk of the court in the name of the presiding judge. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court. The lawyer representing the party (plaintiff or defendant) on whose behalf the testimony is to be given is responsible for serving the subpoena on the witness.

What is generally required for personal service of a subpoena if a witness is reluctant to testify?

If a witness is reluctant to testify, personal service of the subpoena is usually required, along with proof of service provided by a non-party server, to ensure the witness officially receives the legal order.

What information is typically included on a United States subpoena document?

A United States subpoena document typically features the letterhead of the court where the case is filed, names the parties to the case, and is addressed by name to the person whose testimony is being sought. It contains language commanding the person to report to the clerk of the court at a specific location, date, and time, and may include an admonishment about criminal penalties for non-compliance and a warning not to leave until excused, sometimes ending with the archaic threat 'Fail not at your peril.'

How do *pro se* litigants obtain subpoena forms in the United States?

*Pro se* litigants, who represent themselves in court, must ask a court clerk to officially issue them subpoena forms. This is necessary when they need to call witnesses for testimony (by phone or in person) or when they need to officially request documents to be sent to them or directly to the court.

What can happen to documents that have not been properly subpoenaed or verified by a witness in a U.S. court?

In a U.S. court, any documents that have not been officially subpoenaed to court or verified by a witness may be dismissed by the opposite party as hearsay, unless they are specifically excepted by hearsay rules or permitted by the judge.

Who is responsible for payment if a witness is called via a long-distance phone call in the U.S.?

If a witness is called to testify via a long-distance phone call in the U.S., the party requesting the testimony is responsible for initiating the call and providing payment, often by means of a prepaid phone card.

Are there additional restrictions on subpoena use in criminal cases in U.S. states?

Yes, most U.S. states, including California, have further restrictions on the use of subpoenas in criminal cases, which can vary by jurisdiction.

What preliminary step might be required in some U.S. states, like Florida, before issuing a subpoena?

Some U.S. states, such as 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. This allows the other party ample time to file any objections.

What rights does a party being subpoenaed have regarding the subpoena's issuance?

The party being subpoenaed has the right to object to the issuance of the subpoena if it is for an improper purpose. This includes situations such as subpoenaing records that have no relevance to the proceedings, subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged.

What is the geographical limitation of a state court's subpoena power in the United States?

The subpoena power of any state court in the United States generally ends at that state’s border. Consequently, state prosecutors and defense attorneys in a state criminal case cannot use the same procedures to obtain a subpoena for an out-of-state witness as they would for an in-state witness.

What authority do standing committees in the U.S. Congress have regarding subpoenas?

Standing committees in both houses of the United States Congress have the authority to send out subpoenas for legitimate lawmaking and investigation purposes. This power compels the production of testimony or records, and failure to respond constitutes 'contempt of Congress,' a serious offense.

What is the Fifth Amendment exception to being compelled to testify in court?

Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against themselves. This means witnesses cannot be forced to testify if their testimony may incriminate them. However, this right can be set aside if the witness is granted immunity, which allows them to testify while making them immune to prosecution for any crimes they confess to.

Explain the spousal privilege exception to testifying in court.

Spousal privilege generally means that in most cases, a person cannot be compelled to testify against their spouse. This rule exists as a consequence of the Fifth Amendment and the 'One flesh' concept of marriage, implying that married spouses cannot be forced to incriminate each other. Exceptions to this rule include cases involving domestic violence or sexual abuse.

Why is communication with counselors or priests considered privileged in court?

Communication with a counselor or priest is considered privileged because both professions require that clients be free to express themselves completely honestly, without fear of legal consequences, to ensure effective guidance and support.

How does attorney-client privilege protect communication with lawyers?

Attorney-client privilege protects communication with a lawyer, meaning a lawyer cannot be forced to testify against a client. This protection is crucial for clients to freely express all details to their lawyer, enabling the lawyer to provide competent legal advice without fear of disclosure.

What is the doctor-patient privilege, and what does it prevent?

The doctor-patient privilege, based on the law of patient confidentiality, forbids medical professionals from disclosing a patient's private medical information without the patient's permission. Consequently, a doctor cannot provide testimony based upon the patient's private medical information and cannot be compelled to disclose medical records.

Can foreign diplomats be compelled to testify in a U.S. court?

No, foreign diplomats can never be forced to testify in court due to diplomatic immunity, which grants them protection from the jurisdiction of the host country's laws.

When might a witness or evidence be deemed 'incompetent' and thus not required for testimony?

A witness might be deemed 'incompetent' if they have memory or other cognitive deficits that could affect their ability to truthfully recall events, or if they are not physically fit to appear in court. Similarly, evidence itself can be deemed incompetent if it is unreliable or improperly obtained.

What constitutes 'inadmissible evidence' and how does it relate to subpoenas?

Inadmissible evidence refers to evidence obtained illegally, meaning it is not allowed to be presented in court. For example, testimony about a private conversation overheard after someone sneaks onto private property, or about illicit drugs discovered during a burglary, would be inadmissible because the evidence was obtained unlawfully, regardless of a subpoena.

What is a 'friendly subpoena' and why is it used?

A 'friendly subpoena' is a subpoena issued to an individual or entity who would otherwise be willing to testify or submit evidence voluntarily. It is used when the recipient is prevented from cooperating due to a higher-order legal, ethical, or regulatory loyalty, or a fiduciary responsibility, which can only be superseded by a formal subpoena.

What is 'conduct money' in legal systems?

'Conduct money' is money paid in some legal systems to a person under the compulsion of a subpoena to cover their expenses for attending court as a witness.

What components are typically included in 'conduct money'?

Conduct money generally incorporates a daily rate for each day the witness must attend court, with a one-day minimum, plus a travel allowance to enable the witness to get to the place of the hearing.

When must conduct money generally be delivered for a summons to have legal effect?

Generally, conduct money must be delivered to the witness at the same time the summons is served for it to have legal effect.

Is the failure to provide conduct money at the time of service always fatal to the validity of a summons?

No, in some jurisdictions, the failure to provide conduct money at the time the summons is served is considered only an irregularity, meaning it does not necessarily invalidate the summons entirely.

Are witnesses entitled to additional conduct money if their court attendance extends beyond initial expectations?

Yes, witnesses are generally entitled to additional conduct money if their attendance in court is required on more days than initially anticipated.

What additional allowances might a witness receive if an overnight stay is required for court attendance?

Witnesses who are required to make an overnight stay to attend court on more than one day are generally entitled to an allowance for accommodation and meals, in addition to their daily rate and travel expenses.

How are the rates for conduct money typically determined?

The rates for travel, daily attendance, accommodation, and meals included in conduct money are generally set under a court tariff, which fixes these amounts for all witnesses.

Can a party claim more than the tariff amount for conduct money against the losing party?

While witnesses may be paid more than the standard tariff amount, only the tariff amount can be recovered against the losing party in a legal case; any additional costs beyond the tariff cannot be claimed.

Are there different tariffs for conduct money for special witnesses?

Yes, occasionally, special witnesses, such as expert witnesses, may be entitled to receive conduct money under a higher tariff rate, reflecting their specialized knowledge or professional fees.

What are the specific conduct money rates for witnesses in civil proceedings in the Superior Court of Ontario, Canada?

In the Canadian province of Ontario, witnesses in civil proceedings in the Superior Court are allowed a daily rate of 50.00 Canadian dollars. The travel allowance is $3.00 if the witness resides in the same city as the hearing; 24 cents per kilometer each way if the hearing is within 400 km (approximately 240 miles); or an open ticket coach class airfare, plus 24 cents per kilometer to the nearest airport to both the witness and the place of hearing if the distance is over 400 km. An accommodation and meal allowance of $75.00 per overnight stay is provided for anyone traveling more than a certain distance from the hearing.

Subpoena Wiki: The Mandate of Law: Decoding the Subpoena

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What is a Subpoena?

A Compulsory Legal Writ

A subpoena is a formal legal document, typically issued by a government agency, most commonly a court, that carries the force of law to compel an individual to perform a specific action. This action usually involves providing testimony as a witness or producing designated evidence. Failure to comply with a valid subpoena can result in legal penalties, underscoring its authoritative nature in judicial and administrative proceedings.

Subpoena Ad Testificandum

This specific type of subpoena mandates a person to appear and provide oral testimony before the issuing authority. The testimony can be delivered in person at a specified location, such as a courtroom or a deposition, or, in some modern contexts, via telephonic or video conferencing. The primary objective is to secure firsthand accounts or expert opinions relevant to the ongoing legal matter.

Subpoena Duces Tecum

Distinct from compelling testimony, a subpoena duces tecum orders an individual or an organization to produce specific physical evidence, such as documents, electronic data, or other tangible items, before the ordering authority. This is frequently utilized to request copies of records to be mailed directly to a requesting party or submitted to the court, playing a crucial role in discovery and evidence collection.

Etymology & Origin

Under Penalty: The Latin Root

The term "subpoena" originates from the Middle English "suppena," which itself is derived from the Latin phrase "sub poena," meaning "under penalty." This etymological foundation directly reflects the inherent coercive power of the writ, indicating that non-compliance will result in punitive measures. The term is also occasionally spelled as "subpena."

English Common Law Heritage

The subpoena's conceptual framework is deeply rooted in English common law. Historical accounts attribute the creation of this specific writ to John Waltham, who served as the Bishop of Salisbury, during the reign of King Richard II. This legal instrument has since gained widespread adoption and is now a universally applied concept across jurisdictions that adhere to the English common law tradition.

Modern Terminology: Witness Summons

In contemporary civil proceedings within England and Wales, the term "subpoena" has largely been replaced by "witness summons." This linguistic shift is part of a broader reform initiative aimed at adopting "Plain English" in legal terminology, making judicial processes and documents more accessible and understandable to individuals without specialized legal training.

Issuance & Procedure

United States Protocol

In the United States, subpoenas are typically issued by the clerk of the court in the name of the presiding judge. However, court rules often empower lawyers, acting as officers of the court, to issue subpoenas themselves. It is generally the responsibility of the lawyer representing the party seeking testimony or evidence to serve the subpoena on the witness. Personal service, often by a non-party, is usually required, especially if a witness is reluctant.

Content: Subpoenas are usually on court letterhead, name the parties, and are addressed to the specific person. They command appearance at a specific location, date, and time.
Admonishment: Many jurisdictions include warnings about criminal penalties for non-compliance and instruct witnesses not to leave until excused, often concluding with the archaic phrase "Fail not at your peril."
Compensation: In some situations, the subpoenaed person may receive payment for their testimony or document production.
Pro Se Litigants: Individuals representing themselves must request court clerks to officially issue subpoena forms for witnesses or document requests. Unsubpoenaed documents may be dismissed as hearsay unless exceptions apply.
Objections: The recipient of a subpoena has the right to object if it serves an improper purpose, such as requesting irrelevant, confidential, or privileged information, or compelling individuals with no pertinent evidence.
State Court Limits: The subpoena power of a U.S. state court generally does not extend beyond its borders, requiring specific procedures for out-of-state witnesses.
Congressional Authority: Standing committees in the U.S. Congress possess subpoena power for legitimate legislative and investigative purposes. Failure to comply constitutes "contempt of Congress."

Australian Jurisprudence

In New South Wales, Australia, a court holds the discretion to set aside a subpoena, either in whole or in part, if it is deemed a "fishing expedition." This occurs when the requested documents lack relevance to the proceedings in dispute, indicating no legitimate forensic purpose. The court's role is not to redraft the subpoena to narrow its scope. In Victoria, subpoenas are typically issued by a court registry officer and do not require prior leave from the court.

New Zealand Framework

In New Zealand, the issuance and governance of subpoenas are primarily determined by the specific rules of the court from which the subpoena originates. This ensures that the procedural requirements and legal effects are tailored to the particular judicial context, maintaining consistency within each court's operational guidelines.

Exceptions to Compulsion

Privileged Communications

Several legal doctrines protect certain communications from compelled disclosure, recognizing the importance of confidentiality in specific relationships. These privileges are crucial for ensuring individuals can speak freely without fear of their statements being used against them or others in court.

Fifth Amendment (Self-Incrimination): Under the U.S. Constitution, no person can be forced to testify against themselves if that testimony could lead to criminal prosecution. This right can be overridden if the witness is granted immunity from prosecution for any confessed crimes.
Spousal Privilege: In most jurisdictions, a person cannot be compelled to testify against their spouse. This privilege often stems from the "One flesh" concept of marriage and the Fifth Amendment's implications. Exceptions typically include cases of domestic violence or sexual abuse.
Counselor/Priest Privilege: Communications made to counselors or priests are considered privileged, as these professions require clients to be completely honest without fear of legal repercussions.
Attorney-Client Privilege: To ensure competent legal advice, clients must be able to share all details with their lawyer. Therefore, communications with a lawyer are protected, and a lawyer cannot be compelled to testify against a client.
Physician-Patient Privilege: Medical professionals are legally prohibited from disclosing a patient's private medical information without their explicit permission. A doctor cannot be compelled to provide testimony based on this information or disclose medical records.

Diplomatic Immunity

Foreign diplomats are granted diplomatic immunity, a principle of international law that protects them from the jurisdiction of the host country's courts. Consequently, diplomats cannot be compelled to testify in court, ensuring their ability to perform their official duties without interference or fear of legal entanglement in foreign nations.

Witness Competence & Admissibility

A witness may be deemed incompetent to testify if they possess memory or other cognitive deficits that impair their ability to accurately recall events or if they are physically unfit to appear in court. Furthermore, evidence obtained illegally is inadmissible in court. For instance, testimony about conversations overheard through eavesdropping or discoveries made during an illegal search would be excluded, as the evidence was not lawfully acquired.

The "Friendly" Subpoena

Facilitating Cooperation

A "friendly subpoena" is a unique application of the legal writ issued to an individual or entity who would otherwise be willing to provide testimony or submit evidence voluntarily. However, due to a higher-order legal, ethical, or regulatory obligation, or a fiduciary responsibility, they are legally prevented from doing so without a formal directive. The subpoena, in this context, serves to supersede these internal constraints, allowing the recipient to cooperate with an investigation or legal proceeding without violating their primary duties. It is termed "friendly" because the recipient is predisposed to assist once the legal mandate is provided.

Conduct Money & Expenses

Witness Compensation

In several legal systems, "conduct money" refers to the financial compensation provided to an individual compelled by a subpoena to cover their expenses for attending court. This typically includes a daily rate for each day of required attendance (with a minimum of one day) and a travel allowance to facilitate their journey to the hearing location.

Tariff-Based Rates

Generally, conduct money must be delivered concurrently with the summons for it to be legally effective. While failure to provide it at the time of service might be considered an irregularity rather than a fatal flaw in some jurisdictions, witnesses are usually entitled to additional conduct money if their attendance extends beyond initial expectations. For overnight stays, allowances for accommodation and meals are also typically provided.

The rates for travel, daily attendance, accommodation, and meals are generally fixed under a court tariff, applying uniformly to all witnesses. A witness cannot refuse to appear solely because they believe the conduct money is insufficient to cover their lost wages or actual travel costs. While witnesses may receive more, only the tariff amount can be claimed against the losing party.

For instance, in the Canadian province of Ontario, witnesses in civil proceedings before the Superior Court are allotted a daily rate of 50.00 CAD. The travel allowance is $3.00 if the witness resides in the same city as the hearing. For distances within 400 km (approximately 240 miles), it's 24 cents per kilometer each way. If the distance exceeds 400 km, an open ticket coach class airfare is provided, plus 24 cents per kilometer to the nearest airport for both the witness and the hearing location. An accommodation and meal allowance of $75.00 per overnight stay is granted for those traveling beyond a certain distance from the hearing.

Occasionally, specialized witnesses, such as expert witnesses, may be entitled to receive conduct money under a higher, distinct tariff, reflecting the unique value of their specialized knowledge and time.

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References

Webster's New Collegiate Dictionary, p. 1160 (8th ed. 1976).

Lowery v Insurance Australia Ltd [2015] NSWCA 303

Rhonda Wasserman (1989). "The Supoena Power: Pennoyer's Last Vestige," 74 Minnesota Law Review 37.

Wilkinson v. United States 365 U.S. 399 (1961), justia.com.

Conduct money and reasonable costs ACT Civil & Administrative Tribunal

A full list of references for this article are available at the Subpoena Wikipedia page

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Important Notice

This page was generated by an Artificial Intelligence and is intended for informational and educational purposes only. The content is based on a snapshot of publicly available data from Wikipedia and may not be entirely accurate, complete, or up-to-date.

This is not legal advice. The information provided on this website is not a substitute for professional legal consultation, advice, or representation. Always seek the advice of a qualified legal professional for any specific legal questions or issues you may have regarding subpoenas or any other legal matter. Never disregard professional legal advice or delay in seeking it because of something you have read on this website.

The creators of this page are not responsible for any errors or omissions, or for any actions taken based on the information provided herein.

The Mandate of Law

💡 Dive in with Flashcard Learning! 💡

What is a Subpoena? ℹ️

📜 A Compulsory Legal Writ

🗣️ Subpoena Ad Testificandum

📁 Subpoena Duces Tecum

Etymology & Origin 🏛️

📜 Under Penalty: The Latin Root

🇬🇧 English Common Law Heritage

🗣️ Modern Terminology: Witness Summons

Issuance & Procedure ⚙️

🇺🇸 United States Protocol

🇦🇺 Australian Jurisprudence

🇳🇿 New Zealand Framework

Exceptions to Compulsion 🚫

🛡️ Privileged Communications

🌍 Diplomatic Immunity

🧠 Witness Competence & Admissibility

The "Friendly" Subpoena 🤝

✅ Facilitating Cooperation

Conduct Money & Expenses 💰

💸 Witness Compensation

⚖️ Tariff-Based Rates

Teacher's Corner 🧑‍🏫

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Disclaimer ⚠️

📜 Important Notice

Dive in with Flashcard Learning!

What is a Subpoena?

A Compulsory Legal Writ

Subpoena Ad Testificandum

Subpoena Duces Tecum

Etymology & Origin

Under Penalty: The Latin Root

English Common Law Heritage

Modern Terminology: Witness Summons

Issuance & Procedure

United States Protocol

Australian Jurisprudence

New Zealand Framework

Exceptions to Compulsion

Privileged Communications

Diplomatic Immunity

Witness Competence & Admissibility

The "Friendly" Subpoena

Facilitating Cooperation

Conduct Money & Expenses

Witness Compensation

Tariff-Based Rates

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice