Subpoena ad testificandum
The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England.
Cases which had no resolution, just as today, could easily be mocked by the public if the decision by the jury was inconclusive, or not in agreement with all the facts, or with emotions of the populace.
An example is seen from the time of Edward II of England: in 1310–1311 John Soke, a litigant appearing in person before the Common Bench, exclaimed in great frustration, "For God's sake, can I have a writ to attaint this fraud?"
Statute at that time prohibited the issue of a writ of subpoena until the plaintiff had found sureties to satisfy the defendant's damages if he did not prevail in his case.
The Statute of Westminster II (1285) under the section in consimili casu (in similar case), attempted to limit the number of writs that could be issued.
Notwithstanding this refusal, the court declined to permit him any sort of trial by ordeal, but realizing the gravity of the situation they empanelled an impressive jury of twenty-four knights.
Upon the calling of a general Court of Eyre, it was easy to assemble a thousand or more jurors, who could be questioned, and pronounce a prisoner guilty or not.
[13] Shortly after the institution of the jury system, with its attendant seeking of evidence, based on testimony given by witnesses, the problem of maintenance developed.
[15][16][17] Sir John Fortescue was of the opinion that anyone who came forward to volunteer to give testimony in a case should be tried for maintenance, since he should have waited to be issued a writ of subpoena.
[18] Sir Thomas Smith commented that the jury system in the time of Elizabeth could not exist without the ability to compel testimony using the writ subpoena.
Political songs of the day evoked the problem: "At Westminster halle (Legis sunt valde scientes); Nevertheless for hem alle (Ibi vincuntur jura potentes...); His owne cause many a man (Nunc judicial et moderatur); Law helpeth noght than (Ergo lex evacuatur).
Maintenance, along with champerty, appearing armed before a justice of the law, giving of liveries, forgery of deeds, and other corrupting influences were banned under Edward III of England.
An example of the corruption is seen in the 1445 case of Janycoght de Gales who had been committed to prison until he paid the sum of 388 pounds which was owed to Robert Shirbourne, a draper of London.
Until the Late Middle Ages it was not apparent to contemporaries that there would be, or could be, two different and competing legal systems in England, one of them common law and the other equity.
Equity grew in its desire to deal with the de facto failings of the common law courts, and did not concern itself with doctrinal differences.
It was in this spirit that Justice Berrewyk in 1302, ordered an infant to be brought before the court with a writ subpoena: "under pain of (forfeit) of 100 pounds".
The spirit of the Magna Carta, as well as some specific language within it, was the promise that justice in England to all citizens and their property would be in the common law courts, and nowhere else.
[37] A subpoena requires the person therein named to appear and attend before a court or magistrate at the time and place, to testify as a witness.
[36] The rules governing civil and criminal procedure in federal court provide for the subpoena of witnesses, and specify the form and requisites thereof.
A necessary requisite of due process of law is the opportunity to be heard, in a manner which is meaningful, in front of a forum which has an open mind, and is willing to listen to evidence.
As a general rule, independent of statutory considerations, the writ of habeas corpus ad testificandum under American law may be resorted to for the purpose of removing a person confined in a jail or prison to enable him to testify as a witness.
The issuance of such a writ lies within the sound discretion of the court, or the judicial officer having the power to compel the attendance of witnesses.
The constitutional right of an accused to compulsory process for obtaining witnesses does not necessarily extend to compelling the attendance of person in prison.
This is accomplished by way of a court order which specifies terms and conditions, and a determination and certification that the witness is material to a pending criminal proceeding.
For instance, immunity from civil service to non-resident witnesses no longer applies in California after Silverman v. Superior Court 203 Cal.
In Madera v. Board of Education, 1967, the United States Supreme Court ruled that administrative hearings which complied with the requirements of due process must allow counsel.
In Powell v. Alabama, 1938, the Supreme Court ruled that in criminal proceedings, the accused must be provided counsel at public expense, if the defendant cannot afford one.
The APA states that is provision requiring hearings by agency heads of administrative law judges, "does not supersede the conduct of specified classes or proceedings... by or before boards or other employees specially provided for by or designed under statute."
The Internal Revenue Service and the Securities and Exchange Commission have sought to restrict the right of person called as witnesses in investigatory proceedings to engage lawyers who appear as counsel for someone else in the hearing.
The United States Supreme Court ruled that procedural due process requires that a predetermination evidentiary hearing be held when public assistance payments were to be discontinued.
