Judicial subpoena refers to a subpoena issued by a judge, clerk or officer of the court. The judicial subpoena power not only is subject to specific limitations in the United States Constitution, but also is subject to those limitations inherent in the body that issues them because of the provisions of the judiciary article (Art III) of the Constitution.
The key difference between a judicial subpoena and a non-judicial subpoena is that a person who fails to comply with a judicial subpoena, without making a motion to quash, runs the risk of being held in contempt based directly on that failure. In distinction, a person who is served with a non-judicial subpoena cannot be held in contempt for failure to comply unless and until a court has issued an order compelling compliance, which order has been disobeyed.[ Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 341 (N.Y. App. Div. 1st Dep't 1997)]
Rule 45 of the Federal Rules of Civil Procedure grants a Federal District Court the power to issue subpoenas as to witnesses and documents, but the subpoena power of a court cannot be more extensive than its jurisdiction. Therefore, if a District Court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, the process is void.[ United States Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (U.S. 1988)]
The following is an example of a state statute (New York) on Judicial Subpoena:
NY CLS Sup Ct § 1022.19
(iv) when it appears necessary that the examination of any person is necessary for a proper determination of the validity of a complaint or that the production of relevant books and papers is necessary, the chief attorney may apply to the clerk of the Appellate Division for a judicial subpoena to compel the attendance of the person as a witness or the production of relevant books and papers; the application for the subpoena shall be supported by sufficient facts to demonstrate the relevancy of the testimony and of any books and papers specified; subpoenas shall be issued by the clerk in the name of the presiding justice and may be made returnable before the chief attorney or staff attorney at a time and place specified therein.