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Attendance of Witnesses

Generally, apart from the power of adjudication, courts also possess an inherent power to compel the attendance of witnesses before them.  Similarly a non-privileged testimony of witnesses to the proceedings before it can also be secured by a court using its inherent power.  The power of a court to enforce attendance of witnesses is derived from the rights and necessities of society and not from privilege conferred upon individual litigants.

Ordinarily personal convenience or preference of a witness was considered as wholly immaterial with respect to the attendance of a witness before court.  Therefore any person can be compelled to supply any evidence whether verbal or documentary which is relevant to the questions at issue[i].

Whenever attendance of a witness who is a citizen domiciled in the U.S. but abroad, is desired by the Attorney General, or by any assistant or district attorney acting under him/her in a trial of a criminal action, the judge of a court in which the action is pending shall issue a subpoena.  A subpoena shall be addressed to a consul of the U.S. who shall serve it upon the witness personally along with a tender of traveling expenses[ii].  In the case of noncompliance with a subpoena, the U.S. civil service commission (commission) shall invoke the aid of a court of the U.S. for securing the attendance and testimony of witnesses and also for the production of documentary evidence.

While in cases where a witness refuses to obey a subpoena issued to him/her, the U.S. district court within whose jurisdiction the inquiry is carried on may issue an order to such witness:

  • to appear before the commission; or
  • to produce documentary evidence in cases where such production is ordered; or
  • to give evidence concerning the matter in question.

Any failure to obey the order of a district court to appear before such court shall be punished by the court as contempt[iii].

In the case where the testimony of a witness is necessary to the public interest and if such witness refuses to testify on the basis of his/her privilege against self-incrimination, then a court can issue a written order requiring such person to testify notwithstanding his/her privilege[iv].  Therefore a witness may not refuse to testify upon a claim of privilege against self –incrimination when there is no real or substantial hazard of incrimination.  Since the privilege against self-incrimination is mainly concerned with the danger to a witness, who is forced to give testimony which would result in the infliction of penalties affixed to criminal acts upon him/her, the claim of such privilege will not stand in the case where the hazard of incrimination is removed[v].

Generally, attendance of a witness who is imprisoned in jail or prison or in a state hospital can be secured by a writ of habeas corpus.  Thus a writ of habeas corpus to bring a convict from a penitentiary into a trial court is granted for the purpose of securing his/her testimony as a witness, or for the purpose of hearing and determining an indictment that lies against him/her.  The issuance of such a writ lies in the sound discretion of a court or any judicial officer having the power to compel the attendance of witnesses[vi].

However a trial court will not grant an application for habeas corpus to remove a prisoner who is undergoing a sentence in a jail for the purpose of preferring another charge against him/her by taking such person before a magistrate in another state.  But habeas corpus will be granted to bring a witness who is imprisoned for trial on a true bill being found against him/her at the hearing on that charge[vii].

[i] Emerson Elec. Co. v. Superior Court, 16 Cal. 4th 1101 (Cal. 1997).

[ii] United States v. Knight, 291 F. 129 (D. Mont. 1923).

[iii] In re Alleged Prohibited Political Activity etc., 443 F. Supp. 1194 (E.D. Pa. 1977).

[iv] State v. Vallejos, 118 N.M. 572 (N.M. 1994).

[v] Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

[vi] Hottle v. District Court of Clinton County, 233 Iowa 904 (Iowa 1943).

[vii] Ex parte Tramner, 35 Nev. 56 (Nev. 1912).

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