Out-of-State Criminal Subpoenas

One state's subpoena has no legal validity in another state. An Alaskan subpoena cannot compel a person in Mississippi to come to court in Alaska. For that reason the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Cases was adopted. The Uniform Act has been adopted by every state. It has also been adopted by the District of Columbia, the Virgin Islands, and The Navajo Nation.

Here is the basic idea behind the Uniform Act. A judge in one state tells a judge in another state that a person in the foreign state is needed as a witness in the requesting state. The local judge makes the request for the out-of-state witness by signing a certificate in which he or she tells the foreign judge that the witness is material. For example a judge in Alaska signs a certificate telling a judge in Mississippi that a person in Mississippi is needed as a material witness in Alaska. While the Alaska judge has no authority to order a person in Mississippi to come to Alaska, a Mississippi judge does have that authority. So the Mississippi judge orders the witness to travel to Alaska unless the witness convinces the Mississippi judge that it would be too much of a hardship to travel all the way to Alaska and back.

Many Lawyers do not try to obtain out-of-state-subpoenas under the Uniform Act. Some lawyers say, "It never works." Others say that invoking the act takes too much time and bother. Those who say that it never works do not mean that the subpoena fails because the witness has put up a successful defense in the foreign state. Rather, they complain that no hearing was held in response to the paperwork submitted to the foreign court. Those who say that the Uniform Act takes too much time and bother have a point. I discuss some of the work it takes in the Legal and Procedural Issues section below.

Some who do not spend the necessary time and work make a very dangerous move. They send California subpoenas to the witness in the foreign state, and simply hope that the witness appears in court in California.

Part of the reason the request for an out-of-state subpoena takes a lot of time is that the act does not present a cookbook-type recipe for putting together and sending the required documents. One has to take the time to figure out how the Uniform Act works in practice. For example the statutory scheme does not say how an attorney in the requesting state is supposed to initiate action in the foreign state. Section 4 of the Uniform Act (see California Penal Code section 1334.3) states the "certificate shall be presented to a judge of a court of record in the county of such other state in which the witness is found." Who is the person who is supposed to present the certificate? Does the requesting attorney fly to the foreign state, and present the certificate? Does the clerk of the requesting court mail the certificate to the clerk of the foreign court? Does the requesting attorney mail the certificate to the clerk of the foreign court? If the clerk of the foreign court receives the certificate, how does one know if that clerk takes any action on the case?

I distinguish between what I call the "dull track" from what I call the "sharp track" for getting an out-of-state subpoena. In the dull track the local attorney tries to get the subpoena without hiring an out-of-state attorney to handle the case in the foreign jurisdiction. In the sharp track the local attorney hires an out-of-state attorney. For those of you who are court-appointed attorneys do not stop reading now. You might be wondering how your client can afford an attorney in Montana when he or she could not afford you. You might be able to get your local court to fund the foreign attorney. I discuss this possibility in the section Obtaining an Out-of-State Lawyer With Court Funds below.

The attorneys who say that the Uniform Act never works are those who take the dull track. In the dull track the attorney usually sends the certificate to the clerk of the foreign court, and depends on the clerk to take care of things.

It is not the case that the dull track never works. Sometimes it does. But I highly recommend against it. The problem is that you never know what will happen to the certificate, and other documents, once the foreign clerk receives them. Many of us have seen situations where nothing is done in a case because a clerk has simply filed a document without anyone taking any follow-up action. Here is an extreme and interesting example. Many years ago the Solano County Superior Court lacked a procedure for sending to prison a defendant who was out on bail after the defendant's conviction had been affirmed on appeal. After the Court of Appeal would affirm the conviction, the superior court clerk would simply file the remittitur, and the defendant would remain free. Sometimes the foreign court is not sure what the proper procedure to follow is. In one case I was told by an Iowa judge that he followed what I am referring to here as the "dull track," but that he was not sure that this was the correct way to proceed. The judge told me to write a letter to the presiding judge of the Iowa court, and ask how the presiding judge wanted the matter handled. In another case the clerk of a court serving a major city returned all of the requesting documents to me because the clerk's office did not know how to proceed with them. It is always better to hire an out-of-state attorney to have that attorney initiate proceedings, and navigate the case through his or her local court.

There are other possible things that can happen when you send the requesting documents to the foreign court clerk. One California attorney, a friend of mine, sent the requesting documents a short drive away to an Oregon court. All of the documents were returned to him with this nasty note from the judge: "I don't practice law Counsel." The Oregon judge was making the point that the attorney should follow the sharp track.

And then there's this possibility. You send the requesting documents to the foreign clerk, and your witness is ordered to come to your state. But do not take the dull track. It is too much of a gamble.

State v. Hogan (La. 1979) 372 So.2d 1211 illustrates the dangers of the dull track. In that case a Louisiana attorney trying to subpoena a witness in Virginia filed the certificate in the local Louisiana court with instructions to the clerk to present it to the Virginia authorities. Later the clerk's office told the attorney that the certificate had been sent to a sheriff in Virginia. The attorney contacted the sheriff who said he had not received the certificate. Louisiana authorities reassured the attorney that the certificate had been sent to Virginia. The attorney again contacted Virgina authorities, was told that the sheriff has spoken to the witness, and that the witness said she would appear in Louisiana. The defense claimed that the witness was necessary to establish the defense of entrapment. But the witness never showed, and the defendant was convicted and sentenced to life imprisonment at hard labor.

The most important thing that the foreign attorney does is simply to get your case in court. The foreign attorney's main job is to take the initiative in filing the requesting documents, and putting the case on calendar so that you can get a hearing.

In addition to the time and bother that attorneys complain about, there is also the question of money. Getting an out-of-state subpoena can be expensive. Here is a list of possible expenses:

1. Hiring an out-of-state attorney.
2. Process serving fees in getting the witness into the foreign court for the hearing on whether the witness has to come to your state.
3. Filing fees. There may not be filing fees. The Oregon Criminal Defense Lawyers Association [pdf] suggests, however, that you be prepared to pay up to $125. The OCDLA also says that some jurisdictions will waive the fee if your client is indigent. To my knowledge, I have never been charged a filing fee.
4. Statutorily required travel, lodging, witness and per diem expenses for the witness.

There are different possible ways in which to hire an out-of-state lawyer without costing you or your client any money. If you are a court-appointed attorney, you can try to persuade the out-of-state public defender to represent you in the foreign jurisdiction. The public defender will need to be persuaded that you have not been privately retained.

If you are either a court-appointed lawyer, or a privately-retained lawyer whose client has run out of money, you should consider applying to your local court for funds to hire a foreign lawyer. I have yet to see a case on the right to funds to hire an attorney to assist in obtaining an out-of-state witness. There are, however, cases on the issue of funds to pay for travel expenses for the witness. There is a split of authority on the issue of whether the state will provide travel expenses for the out-of-state witness where the defendant cannot afford to pay those expenses. Some courts say that the government does not have to pay the travel expenses. (See State v. Blount (Or. 1953) 264 P.2d 419, 424; State v. Fouquette (Nev. 1950) 221 P.2d 404.) Other courts say that the government does have to pay the travel expenses. (See State v. Harris (Or.App. 1980) 615 P.2d 363; Vore v. State (Neb. 1954) 63 N.W.2d 141, 144; State ex. rel. Butler v. Swenson (Minn. 1954) 66 N.W.2d 1, 3; People v. Carter (N.Y. 1975) 333 N.E.2d 177, 181.) State v. Hogan (La. 1979) 372 So.2d 1211 has broad language that might even include the right to funds to hire an attorney: "A defendant is thus entitled to summon, at state expense, the attendance of witnesses from outside the state, provided he makes a prior showing that the testimony is relevant and material." (372 So.2d at p. 1214.)

No matter what position your state may take on the question of expenses there is no harm in asking for them. In State v. Fouquette the Nevada Supreme Court said that the Uniform Act did not authorize the subpoenaing of an out-of-state witness at public expense. The trial court, however, had already ordered the county to pay for the travel expenses of four witnesses.

California has some good law on the right to obtain ancillary services. The right to effective assistance of counsel includes the right to ancillary services necessary in the preparation of a defense. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 [204 Cal.Rptr. 165, 682 P.2d 360].) The fact that a defendant has had relatives hire a private attorney to defend him does not disqualify him from receiving court-ordered funds for ancillary services when the defendant is otherwise indigent. (Tran v. Superior Court (2001) 92 Cal.App.4th 1149 [112 Cal.Rptr.2d 506]. While Tran was a capital case, its "rationale was not confined to capital cases." (4 Witkin & Epstein, California Criminal Law (2007 supp.) Criminal Trial sec. 173, p. 85.)

When applying for funds to hire an out-of-state attorney you might want to discuss State v. Hogan in your brief. The defendant's conviction in that case was reversed because of the failure of the dull track to get the out-of-state witness into court. State v. Hogan underscores the importance of having a foreign attorney initiating action.

The attorney requesting the out of state subpoena has to draft both an application to his or her local judge for the certificate, and the certificate itself. After the certificate is signed it must have the local court's seal put on it. To a great extent the allegations in the two documents will be the same. And both documents may be somewhat lengthy for the following reasons.

There is a split of authority as to whether the mere conclusion by the judge in the requesting state, that the out-of-state witness is material and necessary, is sufficient to support the finding by the foreign judge that the witness in his or her state is material and necessary. Some courts hold that the mere conclusion of the requesting judge is sufficient to justify the issuance of an order directing the witness to travel to the requesting state. (See Epstein v. People of the State of New York (Fla.App. 1963) 157 So.2d 70; Wolleson v. State of Georgia (Ga.App. 2000) 529 S.E.2d 630.) Other courts hold that the foreign court must also make a determination as to the materiality and necessity of the witness, and that this determination must be supported by facts presented to the foreign judge. (See Matter of the State of New York v. Wagner (Ill.App. 1979) 398 N.E.2d 372; In re Adams (Ill. 1976) 356 N.E. 55; In re Stoddard (Vt. 1983) 470 A.2d 1185.) And a California case warns that the approach taken in Epstein might not be appropriate if the witness contests the subpoena. (See Vannier v. Superior Court of Los Angeles (1982) 32 Cal.3d 163, 173 [185 Cal.Rptr. 427, 650 P.2d 302].) Massachusetts appears to take this view. While Massachusetts favors the Epstein line of authority, it allows local judges to use discretion to independently determine materiality and necessity in appropriate circumstances, such as where hardship is raised as a defense to the subpoena. (In The Matter of a Rhode Island Grand Jury Subpoena (Mass. 1993) 605 N.E.2d 840, 847, 848.) And Massachusetts judges will exercise such discretion where hardship is raised as a defense. (See Commonwealth v. Gasdik (Mass. Super. 2004) 2004 WL 3186247.)

You will want to follow the Wagner-Adams-Stoddard line when you draft the documents. If you meet the standard required of Wagner, Adams, and Stoddard, then you will have met the standard required by Epstein and Wolleson.

The two documents should set out: (1) the crimes charged, (2) the penalties if the defendant is convicted, (3) the facts in the police report relied upon by the prosecution, (4) an offer of proof as to the expected testimony of the out-of-state witness, (5) the evidence law of the requesting state that makes the witness's testimony relevant, (6) the materiality of the witness's testimony, (7) the necessity of the witness's testimony, (8) the witness's address, (9) the fact that each state has adopted the Uniform Act, (10) the date the hearing to scheduled to begin, (11) the dates when the witness will be needed to testify, and (12) an accounting of the travel funds required.

In addition, the requesting attorney should draft a letter to his or her local judge explaining that the reason the documents are so lengthy is the split of authority set out above. Cite the cases. Your local judge may not be used to documents with so much content. But your job is to do things correctly. You do not want the witness's attorney to come up with a defense based upon the incompleteness of your showing. Consider that the Florida version of the Uniform Act gives the Florida resident who is being sought as a witness the right to to be represented by an attorney at the hearing on the requesting state's certificate. (F.S.A. sec. 942.02.)

If necessary, the requesting attorney should also send the out-of-state attorney a memorandum of points and authorities in further support of the subpoena. The requesting attorney can add more of his or her state's legal authority as to the relevance of the witness's testimony. And consider citing Tran v. Kwok Bun Lee (A.D. 2006) 810 N.Y.S.2d 467 for the proposition that a witness who can undermine the credibility of a prosecution witness is a material and necessary witness under the Uniform Act.

You can see that there is a lot of time and bother in getting an out-of-state subpoena. You can see that you need to research the law of states other than the two states involved in your case. That is because you have to be aware of issues that have been raised under the Uniform Act that could conceivably be raised as a defense to your attempt to get a subpoena by an out-of-state opponent who has taken the time to learn the law. But if you do things correctly, you should get your witness ordered to travel to your state to testify. If you don't mind the time it takes to download a 1.1 MB file, here is a copy of an out-of-state subpoena. If you would like to download Adobe Reader to examine the subpoena, you can click on the Adobe logo at the bottom of this page.

The requesting lawyer will want to initiate proceedings in the foreign court sufficiently before trial so that the out-of-state proceedings can be completed in time for the witness to travel to the requesting state. It may take time to locate the witness, and subpoena the witness into the foreign court for the hearing on the out-of-state subpoena. The out-of-state subpoena is required to state a time when the witness is supposed to appear in the requesting state. It is possible that when the witness lands at the airport in the requesting state something has come up unexpectedly, and the trial will have to be continued. That is, the requesting attorney may end up with an out-of-state witness but no trial. For an example see People v. Calamia (N.Y. Sup. 1996) 648 N.Y.S.2d 226.

To prepare for such an event the requesting attorney should have in the back of his or her mind a plan to depose the witness before the witness heads back home. In California such a deposition is provided for in Penal Code sections 1335 through 1345. Under Penal Code section 1343 the deposition may be video taped. One of the grounds justifying the use a motion to depose a material witness, set out in Penal Code section 1336, is that the witness "is about to leave the state." It is reasonable to conclude that a witness who has been ordered to travel across the country to testify in a trial that has just been continued is a witness who "is about to leave the state."

This section is under construction.

There is a split of authority on the question of whether the Uniform Act can be used for the issuance of a subpoena duces tecum. The weight of authority holds that the Uniform Act can be utilized to secure an out-of-state subpoena duces tecum. The cases are discussed at 7 A.L.R.4th 836.

There appears to be three views:

1) An SDT cannot be issued under the Uniform Act because there is no specific provision for it.

2) An SDT can be issued under the Uniform Act because there is no meaningful difference between an SDT and a subpoena for a person. The topic of the SDT was never specifically considered by the drafters. If the drafters of the act had wanted to differentiate between the two, then they would have done so. That is, if they did not want the act to cover the SDT, then they would have specifically said so.

3) An SDT can be issued as long as the custodian of records is also personally subpoenaed.