A subpoena is a court order that requires a person to testify or provide evidence in a disputed case. If the person receiving the subpoena does not comply with its terms, he can be fined or even sentenced to jail. Licensed attorneys can issue subpoenas in their state, and private parties who represent themselves in court -- known as pro se litigants -- can usually issue their own subpoenas.
Types of Subpoenas
There are two types of subpoenas. The subpoena ad testificandum compels someone to appear at the specified date, time and location to testify in court or appear at a deposition. A deposition is a legal proceeding where witness testimony is recorded and sworn to under oath outside of court.
A subpoena duces tecum requires the recipient to provide documents, pictures, files or other physical evidence to the party requesting it. The recipient may have to bring the documents to court or make them available for the requesting party's review at a time before the court hearing in the case. For example, a nearby business may have a video camera that recorded your accident and you want to review the tape before the court hearing.
Issuance of Subpoenas
The plaintiff, the person bringing the case, or the defendant, the person defending the case, can request a subpoena from the clerk of the court that is to hear the case. Your local court clerk may have a specific format that the subpoena must be in. Enter on the form the name of the court, the recipient's name, the case number and the recipient's address. Also provide the time, date and location of the hearing or deposition, and list each item you are requesting with specificity. You may be required to submit a separate affidavit declaring under penalty of perjury the basis for the request and its importance to the case. The court clerk or the judge signs the completed subpoena.
In federal cases, Rule 45 of the Federal Rules of Civil Procedure requires the court clerk to sign a blank subpoena for a party who requests it. He then completes the subpoena form and serves it on the recipient.
If the subpoena is for a governor, head of a government agency or a high-ranking government official, an administrative law judge must usually issue the subpoena.
Serving the Subpoena
The requesting party is usually responsible for having the recipient served with the subpoena. The requirements of valid service vary by jurisdiction. In some jurisdictions, email or verbal service where a sheriff reads the subpoena to the recipient is allowed. Other jurisdictions only permit service by certified mail or by personal service from a sheriff or process server.
If service of a subpoena is not executed correctly or the rules of civil procedure were not properly followed, the subpoena can be thrown out by the judge. The recipient may hire his own attorney and ask the court to quash, or dismiss, the subpoena if the information is not in his possession or would cause the recipient undue burden or expense to comply. Other reasons that can invalidate the subpoena are not including state-mandated witness fees or serving a person who is outside the jurisdiction of the court.