Can a prosecutor in State A, who has brought charges against a defendant in a State A court, compel an important out-of-state witness, W, to leave State B to testify in the State A trial? If so, how?
The answer is yes, by using the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act). This article provides a starting point for prosecutors seeking to secure out-of-state witnesses. Part I discusses the background and history of the Uniform Act. Part II explains the five-step process to secure an out-of-state witness’s testimony. Part III explores several legal and practical issues that may arise. Finally, a table with citations to each state’s Uniform Act statute, as well as applicable caselaw, is included in the appendix.
The subpoena power of any particular state court typically ends at that state’s border.(( Rhonda Wasserman, The Subpoena Power: Pennoyer’s Last Vestige, 74 Minn. L. Rev. 37, 39 (1989); 81 Am. Jur. 2d Witnesses § 15 (2021). )) Thus, a state court in State A would not have jurisdiction to summon(( The Uniform Act uses the word “summons” to describe “a subpoena, order, or other notice requiring the appearance of a witness.” Unif. Act to Secure Attendance of Witnesses From Without State In Criminal Proceedings. § 1 (Unif. Law Comm’n 1931) (amended 1936).[hereinafter Unif. Act] This article will use the words “summons” and “subpoena” interchangeably to describe a court compelling a witness to appear. )) a witness who resides in State B without authorization from a court in State B. As a result, state prosecutors cannot use the same procedures to obtain a subpoena for an out-of-state witness as they would for an in-state witness. The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings (Uniform Act) provides authority and processes for a State A prosecutor(( Defense attorneys may also use the Uniform Act to request the appearance of an out-of-state witness. )) to require a State B witness to testify in State A.
The National Conference of Commissioners on Uniform State Laws introduced the Uniform Act in 1931.(( The National Conference of Commissioners on Uniform State Laws is now known as the Uniform Law Commission. See Attendance of Out of State Witnesses Act, Unif. Law Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=69a013a1-5b59-4d8d-aee3-deb474a4a6b8 (last visited Apr. 23, 2021). )) The object of the act was to promote the enforcement of criminal law and the administration of justice in criminal proceedings.(( 81 Am. Jur. 2d Witnesses § 34 (2021). )) In 1936, the Conference of Commissioners made two changes to the Uniform Act. The first change allowed prosecutors to use the act during grand jury proceedings. The second change allowed for a witness to be arrested, held in custody, and delivered to an officer of the requesting state when “expedient.”(( Unif. Act, supra note 2, at Explanatory Note. )) In 1959, the Supreme Court confirmed the constitutionality of the Uniform Act in New York v. O’Neill.(( New York v. O’Neill, 359 U.S. 1, 9-12 (1959). ))
All fifty states have enacted Uniform Act laws, starting with North Dakota in 1931 and ending with Alabama in 1977.(( Unif. Law Comm’n, supra note 4. )) The District of Colombia, Puerto Rico, and the Virgin Islands have their own versions of the Uniform Act.(( D.C. Code § 23-1501 to 1505 (2020); V.I.C. §§ 3861 to 3865 (2020); P.R. Laws Ann. 34 §§ 1471 to 1475 (2020). )) Guam does not have the Uniform Act, but it has a similar law that allows witnesses in Guam to be subpoenaed to appear in other states.(( 6 Guam Code Ann. § 7603 (2020). )) American Samoa has case law stating it does not recognize the act.(( In re Proceedings to Compel the Attendance of May Fitiausi, 29 Am. Samoa 2d 71 (1995). )) The Commonwealth of the Northern Mariana Islands does not have any case law or statutes addressing the topic.
In terms of tribal territories and jurisdictions, the availability of the Uniform Act is mixed. For example, the Cherokee Nation recognizes the act due to comity, although it is not enacted by the Tribal Council,(( Virginia v. Taylor, 6 Cher. Rep. 17, 19 (Cher. 2007). )) and the Choctaw Nation and Navajo Nation have their own versions of the Uniform Act.(( 17 Navajo Trib. Code §§ 1970 to 1974 (2020). ))
Courts have treated tribes and territories as states for the purpose of the act, even if the particular version of the act does not specifically mention tribes or territories.(( See People v. Superior Court(jans), 224 Cal. App. 3d 1405, 1411(Cal. App. 1990) (holding that the Navajo Nation was considered a “state” for the purposes of the Uniform Act). )) Some versions of the Act specifically mention tribes(( D.C. Code § 23-1501(1) (2020). )) or territories in their definition of “state” for purposes of the act.(( Neb. Rev. Stat. § 29-1906 (1) (2020). ))
Obtaining a subpoena under the Uniform Act is a five-step process. State laws may require slightly different procedures, so this summary should be treated as a general guide. The steps will be illustrated using the scenario from the introduction: a prosecutor in State A wants witness W, who is located in State B, to testify in a State A proceeding.
Legal and practical issues that prosecutors should be aware of when using the Uniform Act include: (1) asking nicely first; (2) importance of timeliness; (3) burden of proof and sufficiency of showing; (4) how and where to address a witness’s claim to have a legal privilege not to testify; (5) the broad discretion of the trial court to issue or decline to issue a summons; (6) the need to attempt to use the Uniform Act for a witness to be considered “unavailable” for certain exceptions to the rule against hearsay to apply; (7) when a witness may be arrested to ensure his appearance; (8) witness travel expenses; (9) whether the Uniform Act can be used to require testimony before a grand jury; and (10) whether the Uniform Act can be used to require the provision of documents, or only witness testimony.
Before jumping in to use the Uniform Act, it is important for the prosecutor in State A to consider an alternate path to getting the required witnesses and evidence: asking nicely first.(( Picione & McLaughlin, supra note 18. )) Quite often the witness or corporation may just agree to travel to testify or produce the documents without requiring the prosecutor to use the Uniform Act.(( Id. )) Even if companies decline a verbal request, they may agree to an informal letter requesting release of the documents required in lieu of a subpoena.(( Id. )) Asking nicely should be the first step, but prosecutors will still need to use the Uniform Act in certain situations.(( See infra, Part III § 2, 6. ))
A potential issue for attorneys attempting to use the Uniform Act is the timeliness of the request to subpoena the witness.(( See 81 Am. Jur. 2d Witnesses § 40 (2021). ))Although there is no timeliness provision in the Uniform Act itself, petitions have been denied for being made too close to the beginning of trial.(( People v. Williams, 318 N.W.2d 671,678 (Mich. Ct. App. 1982) (holding that defendants request to use the act four days before trial was untimely where defendant knew about the witness for five months prior to the request). )) Furthermore, requesting a continuance to secure a material witness the day before trial rather than using the Uniform Act before that point could be considered a violation of the defendant’s speedy trial right.(( State v. Angus, 2006-Ohio-4971, 2006 Ohio App. LEXIS 4911 (Ohio Ct. App. 2006) (holding that the trial court erred in granting the state a seven-month continuance the day before trial for a material out of state witness to return to Ohio where the state failed to make use of the Uniform Act beforehand). )) However, some courts do not require the prosecutor to have used the Uniform Act to satisfy the good cause requirement for a continuance when an out-of-state witness does not appear to testify.(( Sheriff, Clark, Cty. v. Terpstra, 899 P.2d 548, 550-51 (Nev. 1995) (holding that use of Uniform Act was not necessary for the state to show good cause for a continuance to secure the attendance of an out-of-state witness). ))
The burden of proof in a Uniform Act proceeding is on the party requesting the certificate or subpoena.(( 81 Am. Jur. 2d Witnesses § 43 (2021). )) While the prosecutor should be sure to comply with every requirement, it is important to be prepared to show that a witness is material, or material and necessary—whatever is required at that particular stage of the process. Although the certificate from State A serves as prima facie evidence of materiality in the State B materiality hearing, the State B court typically must find that the witness is both material and necessary to grant the summons.(( Id. § 44. )) A mere allegation or bare assertion of materiality is not sufficient.(( Id. ))
“[A]ffidavits or statements by witnesses regarding the content of their testimony”(( Zitter, supra note 26, at 3. )) may be used to show materiality and necessity. Some recommend submitting these affidavits both to the State A court when seeking a certification and to the State B court when seeking the summons.(( Duncan, supra note 18. ))
State B courts typically leave decisions about whether the witness’s testimony is barred by a legal privilege—like attorney-client privilege—to the court where the witness would testify.(( See, e.g., Tracy v. Superior Court (Navajo Nation), 810 P.2d 1030, 1050-51 (Ariz. 1991) (concerning privilege against self-incrimination); In re Cal. Grand Jury Investigation, 471 A.2d 1141, 1145 (Md. App. 1984) (concerning press shield privilege); Johnson v. O’Connor, 327 P.3d 218, 226-27 (Ariz. Ct. App. 2014) (concerning psychologist-client privilege). )) However, some State B courts have concluded that their own state’s important public policies require determining if a witness has a valid legal privilege before issuing a summons.(( Holmes v. Winter, 3 N.E.3d 694, 703-07 (N.Y. 2013) (quashing a subpoena on public policy grounds where a member of the press sought to avoid being required to testify in another state’s criminal trial where the press shield laws in the state where the witness was located were more protective than the press shield laws in the requesting state, because the witness had “establish[ed] that a strong public policy is implicated and that there is a substantial likelihood that an order compelling the witness’s appearance and testimony in the other jurisdiction would directly offend that policy”); People v. Marcy, 283 N.W.2d 754, 757 & n.4 (Mich. Ct. App. 1979) (deciding privilege claim in state where witness was located, where witness, a polygrapher hired by defense counsel, argued polygrapher privilege and attorney-client privilege, and Michigan public policy, precluded the polygrapher from being required to testify). )) If a prosecutor believes a witness is likely to assert that a form of privilege recognized by either State A or State B precludes her from testifying, that prosecutor should research the relevant State A and State B privilege laws and consider the likelihood of litigation of the privilege issue in State A, State B, or in both states.(( Zitter, supra note 26, at 2b. )) It is important to remember that one of the privileges that could be claimed is the privilege against self-incrimination. Thus, the State A prosecutor in those situations should consider whether securing the witness’s testimony is important enough to warrant providing the witness with “use and derivative use immunity sufficient to meet the dictates of the Fifth Amendment.”(( Tracy, 810 P.2d at 1048 (Ariz. 1991). ))
The trial courts have wide discretion to determine whether to issue the certificate in State A or to issue a summons in State B.(( 81 Am. Jur. 2d Witnesses § 46 (2021). )) So, courts have, on occasion, denied requests for a summons on public policy grounds,(( See Holmes, 3 N.E.3d at 703-07. )) or because the request was untimely(( See, infra Part III § 2. )) or the witness’s testimony was cumulative.(( People v. Cavanaugh, 69 Cal. 2d 262, 271-72 (Ca. 1968). ))
All challenges of a decision to issue, or to not issue, a certificate or summons are reviewed at the abuse of discretion standard on the appellate level.(( Id. )) That wide discretion however must be taken together with the idea that appellate courts are fairly strict when it comes to construing the Uniform Act because courts view it as a “drastic infringement on the liberty of the witness.”(( People v. Marcy, 283 N.W.2d 754, 756 (Mich. Ct. App. 1979). )) Also, appeals courts have, on occasion, found that this discretion was abused.(( See, e.g., Wyman v. State, 217 P.3d 572, 575 (Nev. 2009) (concluding Nevada trial court abused its discretion when it denied a defendant’s request for a certificate of materiality to obtain a prosecution witness’s out-of-state mental health records); Tran v. Kwok Bun Lee, 29 A.D.3d 88, 94 (N.Y. App. Div. 2006) (concluding New York trial court abused its discretion when it denied a defendant’s request to compel a witness to testify in his California trial where the judge did not adequately determine materiality); In re Issuance of a Summons Compelling an Essential Witness to Appear & Testify in the State of Minn., 908 N.W.2d 160, 169-70 (S.D. 2018) (concluding trial court judge abused discretion when it did not adequately consider the psychological undue hardship a domestic violence victim may face if compelled to testify). ))
The Uniform Act has implications for hearsay exceptions that require witness unavailability.(( See Fed. R. Evid. 804. )) The Supreme Court has held that an out-of-state witness is not “unavailable” unless the Uniform Act has been used to attempt to summon the witness, and that admitting the out-of-court statements of a witness who the prosecutor did not attempt to summon violates the confrontation clause.(( Barber v. Page, 390 U.S. 719, 724-25 (1968); see also Brumley v. Wingard, 269 F.3d 629, 641 (6th Cir. 2001) (reversing murder conviction where prosecutor introduced out-of-state witness’s videotaped deposition testimony—which included cross-examination by defense counsel—but did not show witness was unavailable; “administrative convenience and budgetary concerns” do not outweigh a defendant’s Sixth Amendment rights, id. at 644). )) Courts have also held that the process of using the Uniform Act is determinative of whether a party has made a good faith effort to find a witness.(( 81 Am. Jur. 2d Witnesses § 40 (2021). ))
The 1936 amendments to the Uniform Act allow for compelling a witness’s attendance through arrest.(( Unif. Act, supra note 2, § 2. Note that at least some jurisdictions have not adopted these amendments. See, e.g., Idaho Code § 19-3005 (2020); P.R. Laws Ann. Tit. 34, § 1471 (2020). )) This may be appropriate if the witness was involved with the crime or has evaded court process.(( In one case where a witness was arrested through Uniform Act processes, that witness was a member of the same gang as the trial defendant and saw the defendant with the murder weapon immediately after a shooting. See Duncan, supra note 18. )) The State A prosecutor must ask the State A court to include a recommendation in the certification “that the witness be taken into immediate custody and delivered to an officer of the requesting state.”(( Unif. Act, supra note 2, § 3. )) The State B judge upon receiving this recommendation in the certificate may, in lieu of issuing a summons for W to appear at the materiality hearing, have W arrested and brought to the materiality hearing.(( Id. )) If W is arrested and brought to the materiality hearing, the State B judge at the hearing must rule on the desirability of the continued custody and delivery of W to State A.(( Id. )) In the same way as the certification in State A is prima facie evidence of materiality, the previously mentioned recommendation by the State A judge serves as prima facie proof of the “desirability” element that the State B judge must consider.(( Id. ))
The Uniform Act offers little guidance about when such an arrest would be appropriate, so prosecutors may consider looking to the material witness warrant provisions in the relevant states, as courts may be familiar with those requirements and inclined to apply them.(( See Survey of Select State and Federal Material Witness Provisions, National Crime Victim Law Institute (Dec. 2016), https://law.lclark.edu/live/files/23521-state-and-federal-material-witness-provisions. )) Prosecutors should also be prepared to address the logistical requirements, like ensuring that State A officers are present during the State B proceeding where W’s detention is sought so W can be “delivered” to them.(( Duncan, supra note 18. ))
Furthermore, prosecutors should carefully consider if the arrest of a material witness is in the interest of justice, especially if the witness is the victim. This is in part due to the impact that arresting the victim of the crime has on the relationship of trust between the community, the prosecutor’s office, and the police. For example, after multiple arrests of sexual assault victims in Louisiana, a public outcry caused both the city council(( Jeff Adelson, DA’s Jailing of Crime Victims is ‘Barbaric’ and ‘Misogynistic’ New Orleans City Council Says, The Advocate (Feb. 17, 2019), https://www.nola.com/news/article_adfc2051-02c8-51b6-a243-8b831e1e8216.html. )) and state legislature(( Byrn Stole, Louisiana Senate Backs Strict Limits on ‘Abhorrent Practice’ of Jailing Victims Unwilling to Testify. The Advocate (May 8, 2019), https://www.theadvocate.com/batonrouge/news/politics/legislature/articleff8efbd8-71ef-11e9-9c77-c76fb775450f.html. )) to strictly curtail the practice, resulting in enactment of a state statute.(( See La. Stat Ann. § 15:257.1 (2020). )) Arrest also has a serious personal impact for witnesses and may reduce their later willingness to call the police for help.(( See Sarah Stillman, Why are Prosecutors Putting Innocent Witnesses in Jail, The New Yorker, (Oct 17, 2017) https://www.newyorker.com/news/news-desk/why-are-prosecutors-putting-innocent-witnesses-in-jail. ))
W will be entitled to transportation and lodging expenses to appear in State A and typically will receive a standard witness fee. Some states have explicit minimum amounts that witnesses must be paid for their travel outlined in their version of the Uniform Act.(( Mich. Comp. Laws Serv. § 767.93 (LexisNexis 2020); Md. Code Ann., Cts. & Jud. Proc. § 9-302 (LexisNexis 2020). )) Others have a specific amount that is tied to other state statutes like a general appropriation act.(( Virginia ties witness compensation to payment amount as whatever is the rate specified in the current general appropriation act. See Va. Code Ann. §§ 19.2-276; 2.2823 (2020). )) As a practical matter, aside from the legally required compensation amount, the prosecutor should endeavor to provide travel and lodging that is reasonable and neither too spartan nor too luxurious.(( Picione & McLaughlin, supra note 18. )) The travel/lodging should not be too luxurious because courts have suggested that excessive payments to a witness could be inappropriate.(( Ronk v. State, 172 So. 3d 1112, 1137-38 (Miss. 2015) (finding no excessive payment to a witness summoned via Uniform Act because the payment was within statutory parameters). ))
The vast majority of states have adopted the 1936 amendments to the Uniform Act, which expressly permit witnesses to be subpoenaed in connection with grand jury proceedings.(( Unif. Act, supra note 2, at Explanatory Note. See also infra Appendix: Uniform Act Reference Chart. )) However, several states—Idaho, North Dakota, and Wyoming—have not adopted the 1936 amendments.(( Idaho Code § 19-3005 (2020); N.D. Cent. Code §§ 31-03-25 to 31; Wyo. Stat. Ann. §§ 7-11-404 to 405. See also infra Appendix: Uniform Act Reference Chart. )) Some of these states instead specify that the Act can be used during “the course of a criminal prosecution.”(( N.D. Cent. Code §§ 31-03-25 to 31 (2019); Wyo. Stat. Ann. §§ 7-11-404 to 406 (2020). )) Furthermore, the Puerto Rico Supreme Court concluded that its statute—which was based only on the original Uniform Act—did not permit it to comply with a request from New York for a witness in Puerto Rico to be required to attend grand jury proceedings in New York.(( People v. Superior Court, 98 P.R.R. 189 (P.R. 1969). See also P.R. Laws Ann. tit. 34, § 1471 (2020). ))
The overwhelming majority of U.S. state courts that have considered the question have concluded that Uniform Act procedures can be used to require a witness to provide documents through subpoena duces tecum.(( See infra Appendix: Uniform Act Reference Chart. )) One lower court in Illinois explicitly prohibited the use of the Act to request documents,(( In re Grothe, 59 Ill. App. 2d 1, 12 (Ill App. Ct. 1965) (concluding statute did not extend to subpoena duces tecum) superseded by statute, 725 Ill. Comp. Stat. 220/1 (2020), as recognized by, Wyman v. State, 217 P.3d 572, 580 n.6 (Nev. 2009). )) but the Illinois legislature amended its statute to explicitly permit subpoenas duces tecum.(( See Wyman, 217 P.3d, at 580 n.6 (Nev. 2009) (recognizing that Grothe, 59 Ill. App. 2d was superseded by statute). ))
Several courts have since concluded that the Uniform Act authorizes courts to require witnesses who are testifying to produce documents.(( See, e.g., Davenport v. State, 711 S.E.2d 699, 701 (Ga. 2011) (collecting cases from Alabama, Florida, Georgia, Maryland, Nevada, New Jersey, and New York that conclude that courts have the power under the state’s Uniform Act laws to order the witness to produce relevant documents). )) Others have found that “the Uniform Act authorizes the issuance of a subpoena duces tecum—a subpoena only for documents”(( Johnson v. O’Connor, 327 P.3d 218, 223-24 (Ariz. Ct. App. 2014) (emphasis added; collecting cases from Alabama, Florida, Georgia, Massachusetts, Maryland, and Nevada). ))—without requiring a witness to accompany those documents. While a lower court in Florida held in the late 1970s that the Uniform Act did not permit a request for only documents, in 2013, the Florida Supreme Court held that the Uniform Act could be used for such requests.(( GM Corp. v. State, 357 So. 2d 1045, 1047 (Fla. Dist. Ct. App. 1978) (concluding Act does not “apply to requests solely for the production of documents,” but not deciding if it applies to “a request for production for documents ancillary to a request for testimony”), overruled by Ulloa v. CMI, Inc., 133 So. 3d 914, 924 (Fla. 2013). ))
If a prosecutor wishes to seek documents held in another state, it would be prudent to research both State A and State B laws to determine if the prosecutor should request only those documents or should also request the testimony of the documents’ custodian.(( See, e.g., Yeary v. State, 302 Ga. App. 535, 537, 690 S.E.2d 901, 903 (Ga. Ct. App. 2010) (“The Uniform Act does not, however, support a stand-alone request for production (or subpoena duces tecum) for out-of-state documents; rather, a request for documents and like things under the Act must be made ancillary to a request for testimony from an out-of-state witness.”), vacated and remanded on other grounds by 711 S.E.2d 694 (Ga. 2011). ))
By following the framework in this article, prosecutors can use the Uniform Act as a tool to obtain testimony and often documents from another state. The Act requires careful planning, research, and attention to legal requirements in multiple jurisdictions. The use of the Act can be crucial, especially for complex, white collar or public corruption cases where witnesses and evidence may be located in other states.
