Editing Subpoena (section)

=== United States ===
Subpoenas are usually issued by the clerk of the court in the name of the judge presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court.<ref>{{Cite web|title=What Is a Subpoena?|url=https://www.findlaw.com/litigation/going-to-court/what-is-a-subpoena.html|access-date=2021-04-21|website=Findlaw|language=en-US}}</ref> Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer representing the party  ([[plaintiff]] or [[defendant]]) on whose behalf the testimony is to be given to [[Service of process|serve]] the subpoena on the witness. If a witness is reluctant to testify, then the personal service of subpoena is usually required with proof of service by non-party server.

The subpoena will usually be on the letterhead of the court where the case is filed, name the parties to the case, and be addressed by name to the person whose testimony is being sought. It will contain the language "You are hereby commanded to report in person to the clerk of this court" or similar, describing the specific location, scheduled date and time of the appearance. Some issuing jurisdictions include an admonishment advising the subject of the criminal penalty for failure to comply with a subpoena, and reminding him or her not to leave the court facilities until excused by a competent authority, often ending with the archaic threat "Fail not at your peril." In some situations, the person having to testify or produce documents is paid.

''[[Pro se]]'' litigants who represent themselves, unlike lawyers, must ask a court clerk to officially issue them subpoena forms when they need to call witnesses by phone or in person, or when they need to officially request documents to be sent to them or directly to court.<ref>{{cite web|url=http://www.mad.uscourts.gov/general/prose-litigants.htm|title=Pro Se Litigants / Representing Yourself}}</ref> Any documents that have not been subpoenaed to court or verified by a witness may be dismissed by the opposite party as [[hearsay]], unless excepted by [[Hearsay in United States law|hearsay rules]] or permitted by the judge. If the witness is called via long-distance phone call, then the requesting party is responsible for initiating the call and providing a payment with a prepaid phone card. Most states (including California) have further restrictions on subpoena use in criminal cases.<ref>{{cite web|url=http://www.spolinlaw.com/blog/2016/10/05/los-angeles-criminal-court-subpoenas/|title=Los Angeles Criminal Court Subpoenas / Rules and Regulations|date=5 October 2016}}</ref>

Some states (as is the case in 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, so that the other party may have ample time to file any objections.

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

'''State courts'''. The subpoena power of any  [[State court (United States)|state court]] in the United States generally ends at that state’s border.<ref name=man>[https://defendermanuals.sog.unc.edu/sites/default/files/pdf/29.1%20Securing%20the%20Attendance%20of%20Witnesses%20by%20Subpoena%20and%20Other%20Process_0.pdf "Securing the Attendance of Witnesses by Subpoena and Other Process,"] ''NC Defender Manual'' Vol. 2, Trial, Chapter 29 (2018).</ref><ref>Rhonda Wasserman (1989). [https://scholarship.law.umn.edu/mlr/2156/ "The Supoena Power: Pennoyer's Last Vestige,"] 74 ''Minnesota Law Review'' 37.</ref> Consequently, lacking any powers outside the state's border, state prosecutors and defense attorneys in a state criminal case  cannot use the same procedures that they would use to obtain a subpoena for an out-of-state witness that they would for an in-state witness.<ref name=gen>Darrell E. White II (May 18, 2021 ). [https://www.naag.org/attorney-general-journal/subpoenaing-out-of-state-witnesses/ "Subpoenaing Out-of-State Witnesses in Criminal Proceedings: A Step-by-Step Guide,"] National Association of Attorneys General.</ref>

'''Congress'''. Standing committees in both houses of the [[United States Congress]] have the authority to send out subpoenas for legitimate lawmaking and investigation purposes. This compels the production of testimony or records, and failure to respond constitutes [[contempt of Congress]].<ref>{{cite court |url=http://supreme.justia.com/us/365/399/case.html|litigants=Wilkinson v. United States 365 U.S. 399 (1961) |reporter=justia.com|access-date=May 18, 2017}}</ref>

There are several exceptions to being required to testify in court, including the following examples:

* [[Fifth Amendment to the United States Constitution|Fifth Amendment]] – Under the Fifth Amendment to the United States Constitution, no person shall be compelled to be a witness against themselves. Witnesses cannot be forced to testify if the testimony may incriminate them. This right can, however, be set aside if the witness is granted immunity. This immunity allows them to testify, and makes them immune to prosecution for any crimes they confess to.
* [[Spousal privilege]] – In most cases, a person cannot be compelled to testify against their spouse. This rule also exists as a consequence of the Fifth Amendment and the "One flesh" concept of Marriage. Under this rule, since married spouses are joined together as one entity, they cannot be forced to testify against each other. Exceptions to this rule include domestic violence or sexual abuse cases.
* [[Priest–penitent privilege|Counselors or Priests]] – Communication with a counselor or priest is considered privileged, because both jobs require that clients be free to express themselves completely honestly, without fear of consequences.
* Lawyers – In order to provide competent legal advice, clients must be free to express all details to their lawyer. Communication with a lawyer is protected, and a lawyer cannot be forced to testify against a client.
* Doctors – Medical professionals are forbidden from disclosing a patient's private medical information without the patient's permission, under the law of [[Physician-patient privilege|patient confidentiality]]. A doctor cannot provide testimony based upon the patient's private medical information, and a doctor cannot be compelled to disclose medical records.
* Diplomats – Foreign diplomats can never be forced to testify in court, under [[diplomatic immunity]].
* Incompetent witness or evidence - A witness may have memory or other cognitive deficits, which could affect their ability to truthfully recall events. They also may not be physically fit to appear in court.
* Inadmissible evidence – If the evidence is obtained illegally, it is not admissible in court. For example, someone who sneaks onto private property and overhears a private conversation between two people cannot testify to that conversation in court. The same applies to illegally recorded conversations, illegally taken photos, or other [[Eavesdropping|eavesdropped]] conversations. If a burglar broke into a home and found illicit drugs inside, their testimony to that discovery would not be allowed in court, as it was illegally obtained.