Compensation and Fees for Attendance
Generally, witnesses are given compensation for testifying before a court of law or any authorized authority. Compensations are given in accordance with the provisions of law for aiding in the due administration of government of a state. They are not given as a reward for testifying. Likewise, a witness is entitled to draw only that much of amount as set by a statute and nothing over that amount is recoverable as compensation.
According to federal statute, a witness who attends any court of the U.S., U.S. magistrate judge, or before any person authorized to take a deposition is entitled for only statutorily allowed fees and allowances. In State v. Dohrn, 259 N.W.2d 801 (Iowa 1977), the court held that giving testimony and attendance upon a court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned. Therefore, a statutory limit is imposed on the amount that can be allowed as compensation.
Although federal statute lay down the statutory limit for compensation, it is according to the state law that the compensation for voluntary attendance is determined. Under common law also a witness’s right to compensation is contemplated as purely statutory and hence no witness fees are paid to the witnesses. But in cases where a witness is an employee of a party to the cause, or a spouse of a litigant, witness fees are paid to them.
Witnesses who are authorized to get compensation include regular witness, expert witness, fact witness, international witness, protected witness, and subpoenas. The main aim behind giving compensation is to pay for their expenses while such witnesses are away from home or work.
In some jurisdictions, a witness who voluntarily attends a court without being subpoenaed is entitled for a daily allowance and mileage. While in some other jurisdictions they are given only a daily allowance or sometimes no compensation are given[i]. In order to get compensation a witness must be in attendance in a court even in cases where s/he is not called upon to testify or proves to be incompetent to serve as a witness. However, travel expenses are given to witnesses who are subpoenaed.
Witness fees, expenses and per diem for witnesses summoned under the Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings are determined on the basis of a hearing conducted by a requesting state.
Any witness who is denied a right to witness fees, expenses and per diem can challenge such denial by mandamus or by civil action. A nonpayment of witness fee is not a reasonable excuse for a refusal to appear before a court under an order of such court, because an obligation to appear in response to a subpoena is separate from the requirement that a witness be paid for his/her attendance in a court[ii].
Generally, any special contract that is entered between the parties to pay more than regular fees is treated as contrary to public policy, void and therefore unenforceable, because performance of a legal duty is not sufficient consideration to support a promise[iii]. Contracts that come under the exception to this general rule include[iv]:
- contract entered with a witness who is located in another state;
- contract for giving testimony only in the form of affidavits.
Apart from the above mentioned contracts, a contract entered with a condition that compensation will be given upon furnishing evidence to prove a specified fact, or when a suit is won is treated as invalid. Exceptionally, in some cases courts have observed that a contract entered with a condition to give true evidence when summoned for more than the usual testifying fees are not immoral or illegal.
In criminal cases also any contract entered between an accused and a witness to give testimony in his/her favor is treated as invalid. Accordingly a defendant in a criminal case does not have an absolute right to bring a witness into a court at public expense, unless there is a statute to the contrary.
Generally, in the absence of an express provision contained in a statute or contractual authorization to the contrary, the amount that is paid as expenses of a litigant’s witness are subjected to taxation according to the express dollar-per-day limitation on witness attendance fees prescribed in 28 U.S.C.A. § 1821, and by Congress’ choice given in 28 U.S.C.A. § 1920.
[i] Rawls v. State, 16 Miss. 599 (Miss. 1847).
[ii] Mylius v. St. Louis, F. S. & W. R. Co., 31 Kan. 232 (Kan. 1884).
[iii] Leggett v. Vinson, 155 Miss. 411 (Miss. 1929).
[iv] Dodge v. Stiles, 26 Conn. 463 (Conn. 1857).