What are the two types of subpoena under the law?
1. Subpoena Ad Testificandum
2. Subpoena Duces Tecum
What is a Subpoena Ad Testificandum?
Subpoena ad testificandum is a
process directed to a person requiring him to attend and to testify at the
hearing or the trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. (Rule 21, Sec 1)
What is a Subpoena Duces Tecum?
Subpoena duces tecum is a process directed to a person
requiring him to bring with him books, documents or other things under his
control. (Rule 21, Sec 1)
Who are authorized to issue subpoenas?
1. Court before
whom the witness is required to attend
– commonly, in
the court where the case is pending
2. Court of the
place where the deposition is to be taken
3. Officer or body
authorized by law to do so in connection with investigations conducted by said
officer or body.
– e.g. Labor
Arbiter or Senate Blue Ribbon Committee
4. Any Justice of
the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines
(Rule 21, Sec 2)
- any justice
can issue a subpoena to attend a particular case although it is not before the
SC. They are empowered to issue a subpoena
Can the a prisoner be subpoenaed to appear in court?
1. Yes. But the judge or officer must examine and study carefully the application
for a subpoena to determine whether the same is made for a valid purpose.
2. No prisoner
sentenced to death, reclusion perpetua or life imprisonment shall be brought
outside the penal institution UNLESS authorized by the Supreme Court.
(Rule 21, Sec 2)
What are the grounds for quashing a subpoena ad testificandum?
1. The witness is not bound thereby (see Sec. 10)
2. The witness fees and kilometrage were not tendered when the subpoena
was served (Rule 21, Sec 4)
What are the grounds for quashing a subpoena duces tecum?
1. The subpoena duces tecum is unreasonable
and oppressive;
e.g. “Mr. Manager you are required to
bring to court all your ledgers, all your receipts, and all your documents from
1990 to the present.”
2. The books,
documents or things sought to be produced do not appear to be relevant to the
issues;
e.g. In a collection
case, you were required to bring your birth certificate, marriage contract.
3. The person
asking for the subpoena fails to advance the reasonable cost of production of
the articles desired.
Did the person offer any amount for the trouble in looking for these
documents and in going to court?
4. The witness fees and
kilometrage were not tendered when the subpoena was served (Rule 21, Sec
4)
Witness Fees – Rule 141, Sec 13
5. Failure to describe with particularity (N.B.
not in the rules. See Sec. 3)
How shall a subpoena be served?
Service of a subpoena shall be made in the same manner as personal or
substituted service of summons.
The original shall be exhibited and a copy thereof delivered to the
person on whom it is served, tendering to him the fees for one day's attendance
and the kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made.
The service must be made so as to allow the witness a reasonable time
for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered. (Rule 21, Sec 6)
May you be required to testify if you have not served with a subpoena?
Generally Rule: No.
Exception: A person present in court before a judicial officer may be required to
testify as if he were in attendance upon a subpoena issued by such court or
officer. (Rule 21,
Sec 7)
What are the consequences if a witness refuses to obey the subpoena?
1. The court which
issued the subpoena may issue a warrant for the arrest of the witness
and make him pay the cost of such warrant and seizure, IF the court should
determine that his disobedience was willful and without just cause; (Rule 21, Sec 8)
2. The witness may
be held in indirect contempt of the court issuing it. (Rule 21, Sec 9)
When is a witness not bound by a subpoena?
1. When his
place of residence is more than 100 kilometers to the place of trial by
the ordinary course of travel.
2. When the witness is a detention prisoner and no permission of
the court where his case is pending was obtained. (Rule 21, Sec 10)
● This is known
as the VIATORY RIGHT of a witness
● This right is
available only in CIVIL cases
● The viatory
right (100-km distance) does not apply in a criminal case where the accused
would like to seek the compulsory process issued to secure the attendance of
his witnesses in his behalf because that is a superior right
Distinguish
Subpoena from Summons
1.)
SUBPOENA is directed to a witness (non-party); whereas SUMMONS is directed to a
defendant in a civil case;
2.)
In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas
in SUMMONS, the defendant is informed that a complaint is filed against him and
he must file a responsive pleading within the period otherwise, judgment can be
rendered;
3.)
In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled
by the issuance of a warrant for his arrest; whereas in SUMMONS, a judgment in
default will be rendered against the defendant who fails to comply.
4.)
SUBPOENA is applicable to both criminal and civil case; whereas SUMMONS applies
only to civil cases.
5.)
In SUBPOENA, there is a 100-km limitation of its enforceability; whereas in
SUMMONS, there is no distance limitation.
Can the clerk of court issue a subpoena in the absence of a judicial
action?
No.
Can the OMB issue a subpoena?
Yes.
Can the office of the prosecutor issue a subpoena?
Yes.
Is the receipt of a subpoena by a respondent in a case filed before the
office of the prosecutor necessary for the office to acquire jurisdiction over
the respondent?
● No. It is
totally irrelevant. Preliminary
investigation before the Office of the Prosecutor is a statutory right, not
constitutional right. You can altogether
dispense with it, or waive it. It is not
essential for DP.
● There is an express provision in Rule 112(D) that
says failure to receive the subpoena will not bar the prosecutor from issuing a
resolution. It is not imperative.
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