Author:John E. Nowak

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A subpoena is a court order that compels a person to appear for the purpose of giving testimony at a trial or a pretrial proceeding, such as a preliminary examination or

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pretrial deposition. A court also can issue a subpoena for documents or other items of tangible EVIDENCE. Parties to civil suits, and the prosecution in criminal cases, had a COMMON LAW right to compel testimony before the creation of the Constitution. The Sixth Amendment provides defendants in criminal cases a basis for fairly presenting their defense by giving them the power to subpoena witnesses. The government in some circumstances may have an affirmative duty to help a defendant find a witness, such as a government informer, or to refrain from restricting the defendant's ability to locate a witness essential to the presentation of a defense.

The Sixth Amendment, in part, provides that accused persons have the right of witnesses and the right "to have compulsory process" for obtaining witnesses in their behalf. The confrontation and compulsory process clauses permit the defendant to use the power of the courts to obtain witnesses and they limit governmental interference with the defendant's ability to examine witnesses at trial. These clauses have been incorporated into the FOURTEENTH AMENDMENT by the Supreme Court; thus they govern both federal and state prosecutions.

A defendant may compel a person to testify in a court proceeding by applying to the court for a subpoena ordering the person to appear in court or at a pretrial hearing. However, the defendant's ability to use the court's subpoena power is not unlimited. A court can require a defendant to provide it with information that justifies the production of the witness.

When a defendant has a court issue a subpoena to a witness, the witness normally is entitled to a statutory fee to offset his expenses for attendance at the judicial proceeding. An INDIGENT defendant may use the court's subpoena power to compel witnesses to testify in his behalf even though he cannot pay the witness fee. In these circumstances, however, a court may require the indigent defendant to show that the persons whom he subpoenas are likely to give testimony relevant to the charge.

An indigent defendant may try to use the subpoena power to compel an expert (such as a psychiatrist or a ballistics expert) to attend court to testify on the defendant's behalf. Whether the government must pay the cost...

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