Subpoena

What is a subpoena?

A subpoena is a court document commanding a witness to attend and testify at a stated time and place. It can also order the witness to produce designated documents, data or other objects. Federal Rule of Criminal Procedure 17 supplies the federal criminal-court example explained here. The subpoena states the court's name and the proceeding's title, includes the court's seal, and remains subject to the court's stated powers. [5]

How does a subpoena come up in a federal criminal case?

In the federal criminal-court example on this page, a subpoena commands a witness to attend and testify, and can require production of designated records or objects. The Federal Rules of Criminal Procedure govern proceedings in the federal courts identified in Rule 1. This page explains the definition, its role and the decision makers through those federal rules. [1][5]

Under federal Rule 17, the clerk issues a blank subpoena that is already signed and sealed to the requesting party. That party fills in the blanks before the subpoena is served. [5]

A federal subpoena can require more than testimony. It may order the witness to produce designated books, papers, documents, data or other objects. The court may direct that those items be produced in court before trial, and it may let the parties and their attorneys inspect them. [5]

Rule 17 authorizes service by a marshal, a deputy marshal, or a nonparty meeting its age requirement. The server must deliver a copy to the witness and tender the specified attendance fee and mileage allowance, except when the United States, a federal officer or a federal agency requested the subpoena. A subpoena to attend a hearing or trial can be served anywhere within the United States. [5]

How does Rule 17 address requests for documents or objects?

For a subpoena requiring production of documents or objects, federal Rule 17 allows the court, on a motion made promptly, to quash (cancel) or modify the subpoena if compliance would be unreasonable or oppressive. [5]

After a complaint, indictment or information is filed, Rule 17 requires a court order to serve a third party with a subpoena seeking a victim's personal or confidential information. Before entering the order, and unless exceptional circumstances exist, the court must require notice to the victim so the victim can seek to quash or modify the subpoena or otherwise object. [5]

How is a subpoena different from a summons or a search warrant?

In federal court, a subpoena commands a witness to attend and testify, while a summons requires the defendant to appear. Under Rule 4, the summons requires appearance before a magistrate judge at a stated time and place. At the government attorney's request, the judge must issue a summons instead of an arrest warrant. [2][5]

Under federal Rule 41, a magistrate judge, or a state judge when the rule allows, issues a search warrant if the required probable-cause finding is made. The warrant directs an authorized officer to execute it. Rule 17 instead provides for a subpoena commanding a witness to attend and testify or produce designated items. [3][5]

Can a subpoena be used to get a witness's earlier statement?

Not under federal Rule 17. The rule says no party may use it to subpoena a statement of a witness or a prospective witness. Rule 26.2 controls instead. After a witness other than the defendant testifies on direct examination, the court, on motion of the party who did not call that witness, must order production of the witness's related statements. [5][4]

What if a defendant cannot afford to subpoena a witness?

Under federal Rule 17, on a defendant's ex parte application, the court must order a subpoena for a named witness if the defendant shows an inability to pay the witness's fees and that the witness's presence is necessary for an adequate defense. If the court orders it, process costs and witness fees are paid in the same manner as those for government witnesses. [5]

What happens if a witness disobeys a federal subpoena?

Federal Rule 17 allows a court other than a magistrate judge to hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district. For a subpoena issued by a magistrate judge, the rule states that the magistrate judge's contempt authority is as provided in the separate federal statute it references. This page describes Rule 17, not that statute's additional provisions. [5]