[Latin, Under penalty.] A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony.
A court, GRAND JURY, legislative body, or ADMINISTRATIVE AGENCY uses a subpoena to compel an individual to appear before it at a specified time to give testimony. An individual who receives a subpoena but fails to appear may be charged with CONTEMPT of court and subjected to civil or criminal penalties. In addition, a person who has been served with a subpoena and has failed to appear may be brought to the proceedings by a law enforcement officer who serves a second subpoena, called an instanter.
A subpoena must be served on the individual ordered to appear. In some states a law enforcement officer or process server must personally serve it, whereas other states allow service by mail or with a telephone call. It is most often used to compel witnesses to appear at a civil or criminal trial. A trial attorney may
receive an assurance from a person who says that she will appear in court on a certain day to testify, but if a subpoena is not issued and served on the witness, she is not legally required to appear.
It is up to the attorneys in a case to request subpoenas, which are routinely issued by the trial court administrator's office. The subpoena must give the name of the legal proceedings, the name of the person who is being ordered to appear, and the time and place of the court hearing.
Legislative investigating committees also issue subpoenas to compel recalcitrant witnesses to appear. Congressional investigations of political scandal, such as the WATERGATE scandals of the Nixon administration, the IRAN-CONTRA scandal of the Reagan administration, and the WHITEWATER scandal of the Clinton administration, rely on subpoenas to obtain testimony.
A subpoena that commands a person to bring certain evidence, usually documents or papers, is called a SUBPOENA DUCES TECUM, from the Latin "under penalty to bring with you." This type of subpoena is often used in a civil lawsuit where one party resists giving the other party documents through the discovery process. If a court is convinced that the document request is legitimate, it will order the production of documents using a subpoena duces tecum.
A party may resist a subpoena duces tecum by refusing to comply and requesting a court hearing. One of the most famous refusals of a subpoena was RICHARD M. NIXON's reluctance to turn over the tape recordings of his White House office conversations to the Watergate special prosecutor. Nixon fought the subpoena all the way to the Supreme Court in UNITED STATES V. NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). The Court upheld the subpoena, leading Nixon to resign his office a short time later.