Securing Attendance of Out of State Witnesses in Criminal Proceedings

Generally, attendance of a witness who is a nonresident and who is out of state is secured by means of a statute or agreement that is entered into between the states.  Therefore, compulsory attendance of a witness cannot be secured by a state in the absence of an agreement between two or more state on the matter.

Accordingly, when a contract is made between parties outside the state in the presence of witnesses who reside outside the state, the court will presume that the witnesses reside at a place where the contract was made, and that the witnesses are not subject to a process of a court and hence attendance of such witnesses cannot be secured before the court.  In such cases, secondary evidence are allowed by a court to prove execution of such contract[i].

The Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings (Uniform Act) was successful in providing a remedy to such situation.  According to the Uniform Act, a state court shall present a certificate that is issued under its seal to a judge of a court of record in the county in which a witness is present if it finds that a person in any state is a material witness to a prosecution that is pending in its court[ii].  Provided, the requesting state must have made provisions for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations in the state.  The certificate shall state the facts of a case and the number of days for which a witness will be required to give testimony[iii].  The judge issuing a certificate shall also fix a time and place for a hearing, and will make an order directing a witness to appear at a time and place certain for hearing[iv].  In the hearing, such certificate shall be prima facie evidence of all the facts stated therein[v].

Under the Uniform Act, a person who is requested to testify would be specifically exempted from the prosecution of all matters that have arisen before entrance into the state under the summons[vi].

Pursuant to the Uniform Act, in order to secure attendance of witnesses who are located outside a state in criminal proceedings some conditions need to be fulfilled.  They are:

  • there must be a reciprocation between the requesting and responding states;
  • there must be due diligence and good faith on the part of a requesting party;
  • there must be a determination made by a court that a requested witness is material and necessary to a pending criminal prosecution;
  • there must be a certification of materiality and necessity by a requesting court; and
  • there must be a hearing and issuance of summons by a court that is having jurisdiction over the person whose testimony is sought[vii].

However, the Uniform Act is not available:

  • in a federal district court; and
  • against witnesses residing in a foreign nation.

It is on the basis of the facts stated in a certificate that a requesting state’s court and a court to which the certificate is presented would determine whether a witness should be summoned and compelled to travel to a trial in a foreign jurisdiction, or whether such direction impose undue hardship upon a witness[viii].

Whether a person is a material and necessary witness is decided at the hearing in a court in the state where the witness resides.  A person is said to be a material witness if the judge of the state in which the proceeding is pending and the judge of the state where the witness resides finds that such witness was material before a summons was issued for his/her attendance in an out-of-state criminal proceeding.  However, a witness whose testimony is barred by a privilege or is cumulative of other evidence will not be treated as a material witness under the Uniform Act[ix].

Some courts have observed that a question of materiality should be the decision of a requesting court because such question depends on the law of that court’s jurisdiction and the issue presented in a criminal proceeding in that jurisdiction.  Courts have further observed that determining if a witness is material or not by a court in a state where a witness is located will not promote the purpose of the Uniform Act.

[i] Clark v. Sanderson, 3 Binn. 192 (Pa. 1810).

[ii] State v. Breeden, 333 Md. 212 (Md. 1993).

[iii] State ex rel. Forte v. Ferris, 79 Wis. 2d 501 (Wis. 1977).

[iv] In re Adams, 64 Ill. 2d 269 (Ill. 1976).

[v] State v. Blount, 200 Ore. 35 (Or. 1953).

[vi] Breeden v. State, 95 Md. App. 481 (Md. Ct. Spec. App. 1993).

[vii] People v. Marcy, 91 Mich. App. 399 (Mich. Ct. App. 1979).

[viii] Mafnas v. State, 149 Ga. App. 286 (Ga. Ct. App. 1979).

[ix] Skakel v. State, 738 So. 2d 468 (Fla. Dist. Ct. App. 4th Dist. 1999).


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