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Differences Between Federal and State Subpoena Power

Comparing Federal and State Subpoena Power

Due to federalism, both the federal government and each state government have their own court systems with different rules for issuing subpoenas. This article will compare federal and state subpoena powers – their key differences, implications, and defenses.

Court Structure

The federal court system was created by Article III of the Constitution and consists of the U.S. Supreme Court and lower federal courts established by Congress [1]. State court systems are established by each state’s constitution and laws. They typically have a state Supreme Court, intermediate Appeals Court, and trial courts [2].

Jurisdiction Over Cases

To limit federal power, the Constitution restricts the types of cases federal courts can hear. Most laws governing daily life are state laws, so state courts handle most disputes [2]. Federal courts defend basic rights like free speech and equal protection.

Subpoena Power

Federal courts can issue subpoenas nationwide under Federal Rule of Civil Procedure 45 [4]. State courts’ subpoena power usually ends at the state border [5]. To subpoena an out-of-state witness, state prosecutors must follow special procedures.

Federal Subpoenas

  • Valid nationwide
  • Uniform procedure under FRCP 45
  • Easier to issue for out-of-state witnesses

State Subpoenas

  • Limited to state borders
  • Complex procedures for other states
  • Harder to subpoena out-of-state witnesses

State Procedures for Out-of-State Witnesses

Most states adopted the Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings. This involves [5]:

  1. Researching rules in both states
  2. Prosecutor presents subpoena to clerk in witness’s state
  3. Clerk issues subpoena in proper form for that state
  4. Serve subpoena under rules of witness’s state
  5. Pay required fees

Non-uniform states have different procedures, like getting a court order or just providing notice [4]. Key considerations:

  • Different rules/fees in each state
  • Public policy exceptions – some states won’t enforce [5]
  • Constitutional challenges – some argue unfair burden

Federal Government Subpoenas

Federal agencies and officials have various subpoena powers granted by statutes [3]. However, state legislatures likely can’t compel federal officials to comply using subpoenas [6] due to:

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  • Intergovernmental immunity doctrine
  • Supremacy clause

Key Differences

In summary, the key differences between federal and state subpoena power include:

  • Federal subpoenas have nationwide reach, state subpoenas stop at state borders
  • Federal rules are uniform nationwide, states have disparate procedures
  • Federal subpoenas are easier for out-of-state witnesses
  • State subpoenas face more constitutional and policy challenges

Understanding these differences allows prosecutors to effectively obtain subpoenas and defendants to raise valid challenges.


[1] https://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts
[2] https://judiciallearningcenter.org/state-courts-vs-federal-courts/
[3] https://www.cga.ct.gov/PS98/rpt%5Colr%5Chtm/98-R-0346.htm
[4] https://legal.thomsonreuters.com/blog/out-of-state-discovery/
[5] https://www.naag.org/attorney-general-journal/subpoenaing-out-of-state-witnesses/
[6] https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1179&context=facultyarticles

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