Tinney, Joseph

English

University of San Francisco

MAKING THE INDIGENT PAY TO OBTAINOUT-OF-STATE WITNESSESThe indigent criminal defendant has always been faced with the problemof obtaining witnesses to testify in his behalf, particularly if his wit-nesses are not present in the state where he is being tried. The UniformAct to Secure the Attendance of Witnesses from Without a State in Crim-inal Proceedings' seemed to solve this problem for the indigent defendantafter the great majority of states adopted it, and particularly after theSupreme Court upheld its constitutionality.' This Act provides that a wit-ness may be subpoenaed to testify in a criminal case or grand jury proceed-ing from any other state having a reciprocal statute. The defendant mustshow that the witness is material, and the witness must be tendered fivedollars for each day he is required to attend and ten cents for each milehe must travel to and from the court.'1 Hereinafter referred to as the Act. The Act has been adopted in 45 states and PuertoRico; ALASKA STAT. tit. 12, §12.50.010; ARIZ. REV. STAT. ANN. §13-1861; ARK. STAT.ANN. §43-2005; CAL. PEN. CODE §1334; COL. REV. STAT. ANN. §39-6-1; CONN. GEN. STAT. REV.§54-22; DEL. CODE ANN. tit. 11, §3521; FLA. STAT. ANN. §942.01; IDAHO CODE ANN. §19-3005;ILL. REV. STAT. ch. 38, §690.1; IND. ANN. STAT. §9-1626; KAN. GEN. STAT. ANN. §62-2801; Ky.REV. STAT. ANN. §421.230; LA. REV. STAT. §15.152.1; ME. REV. STAT. ANN. tit. 15, §1411; MD.ANN. CODE art. 27, §617; MASS. ANN. LAWS ch. 233, §13(a); MINN. STAT. ANN. §634.06; Miss.CODE ANN. §1892; Mo. ANN. STAT. §491.400 (Cum Supp. 1959); MONT. REV. CODES ANN.§94-9001; NEB. REV. STAT. §29-1906; NEV. REV. STAT. §178.295; N. H. REV. STAT. ANN.§613.1; N. J. STAT. ANN. §2A: 81-18; N. M. STAT. ANN. §41-12-13; N. Y. CODE CRIe. PROC.§618(a); N. C. GEN. STAT. §8-65; N. D. CENT. CODE ANN. §31-03-25; OHIO REV. CODE ANN.§2939.26; OKLA. STAT. tit. 22, §721 (Supp. 1959); ORE. REV. STAT. §139.210; PA. STAT. ANN.tit. 19, §622.1; P. R. LAWS ANN. tit. 34, §1471; R. I. GEN. LAWS ANN. §12-16-1; S. C. CODE§26-301; S. D. CODE §34.2501; TENN. CODE ANN. §40-2429; TEX. CODE CRIVe. PROC. ANN. art.24.28; UTAH CODE ANN. §77-45-11; VT. STAT. ANN. tit. 13, §6641; VA. CODE ANN. §19-242;WASH. REV. CODE §10.55.010; W. VA. CODE ANN. §6246(1); WIS. STAT. ANN. §325.33; Wyo.COMP. STAT. ANN. §7-250. For a comprehensive annotation on all phases of the Act, see 44A.L.R.2d 732.2 New York v. O'Neill, 359 U.S. 1 (1958).3 UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT A STATE INCRIMINAL PROCEEDINGS §3, 9 U.L.A. 91 (1957): "If a person in any state, which by its lawshas made provision for commanding persons within its borders to attend and testify in crim-inal prosecutions, or grand jury investigations commenced or about to commence, in this state,is a material witness in a prosecution pending in a court of record in this state, or in a grandjury investigation which has commenced or is about to commence, a judge of such court mayissue a certificate under the seal of the court stating these facts and specifying the number ofdays the witness will be required. Said certificate may include a recommendation that the wit-ness be taken into immediate custody and delivered to an officer of this state to assure hisattendance in this state. This certificate shall be presented to a judge of a court of record inthe county in which the witness is found.If the witness is summoned to attend and testify in this state he shall be tendered the sumof ten cents a mile for each mile by the ordinary traveled route to and from the court wherethe prosecution is pending and five dollars for each day that he is required to travel and at-tend as a witness. A witness who has appeared in accordance with the provisions of the sum-mons shall not be required to remain within this state a longer period of time than the period326However, because of the interpretations given the Act by the courts,the indigent defendant is still a long way from the protection the Actseemed to promise him. The basic problem is that the courts seem to re-quire a defendant to pay the expenses of witnesses subpoenaed for himunder the Act, even though he may be indigent.IJUDICIAL INTERPRETATIONS OF THE ACTNevada was the first jurisdiction to pass on the problem. In State v.Fouquette4 the court said in dictum that the Act conferred no authorityto subpoena defense witnesses at public expense. There the court stated,[1]t is clear that this statute, providing, as it does, that specified sumsfor fees and mileage shall be paid or tendered to non-resident witnessessummoned to attend and testify in criminal prosecutions in this state,but not providing, either expressly or by implication, that such witnessessummoned on behalf of the defendant shall be brought in without ex-pense to him, does not confer upon the courts of this state authority toprocure the attendance and testimony of witnesses from without thestate for the defendant in any case at the expense of the public.5Only a constitutional compulsory process question was raised by the de-fendant in this case, and the Act was not cited by him in his argument. Thecourt ruled that the subpoena was properly denied because the testimonyof the desired witnesses would have been incompetent and immaterial.Also, the trial court had allowed the defendant to subpoena four out-of-state witnesses at public expense; yet the Fouquette case has been heavilyrelied on by other courts which have considered the question.6One such case was State v. Blount,' where the defendant obtained anorder to secure an out-of-state witness under the Act. However, he allegedthat he could not compel the witness' attendance, because he was desti-tute and could not tender the necessary expenses. The trial court refusedto order public funds for this purpose, and the Oregon Supreme Court up-held the ruling. Dismissing the defendant's claim of indigency by sayingmentioned in the certificate, unless ordered by the court. If such witness, after coming intothis state, fails without good cause to attend and testify as directed in the summons, he shallbe punished in the manner provided for the punishment of any witness who disobeys a sum-mons issued from a court of record in this state."There are some variations in the Act in different states. Some states, for example, allow alarger per diem amount for expenses than others.4 67 Nev. 505, 221 P.2d 404 (1950).5 Id. 221 P.2d at 410.6 State v. Blount, 200 Ore. 35, 264 P.2d 419 (1953) ; Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954) ; State ex rel. Butler v. Swenson, 243 Minn. 24, 66 N.W.2d 1 (1954); State v.Hemmenway, 80 S.D. 153, 120 N.W.2d 561 (1963).7 State v. Blount, supra note 6.April 19671 COMMENTSUNIVERSITY OF SAN FRANCISCO LAW REVIEWthat there was no such showing when the order was made, the court heldthat there was no authority under the Act to secure defense witnesses atpublic expense because, although the Act requires that the witness be ten-dered mileage and expenses, it is silent as to the source of the money.8 Thecourt also stated that there was no authority under the Act to expend anyfunds in advance,9 although it seems that a witness is not required to at-tend unless he is first tendered these fees. Finally, the court felt that Ore-gon law, which allowed defendants to have witnesses within the statesubpoenaed at public expense, did not establish a public policy of usingcounty funds to secure out-of-state defense witnesses."A similar decision in Vore v. State" declared that the authority to paydefendant's witness fees must arise from an express provision of a statuteand not by implication.The issue of an indigent defendant was squarely met in State ex rel.Butler v. Swenson and State v. Hemmenway, 2 where the defendants wererepresented by appointed counsel. In both cases it was decided that thecourt lacked authority under the Act to provide defendants with out-of-state witnesses at public expense, and no special consideration was giventhe defendants because of their indigency.As an example of the extent to which courts have gone in misconstru-ing the statute, State v. Lupino'5 held that the Act did not impose upon thestate any obligation to procure for the defendant out-of-state witnessesbecause they are beyond the reach of the state's process. The court modi-fied its statement somewhat by saying that it assumed that arrangementsto secure vital defense witnesses from outside the state would be made ifthis could be done with "reasonable facility,"' 4 but this did not preventthe ruling from being clearly erroneous. The holding was based on thetheory that the only purpose of the Act is to enable the prosecution tosecure witnesses. The Act certainly has that effect, but there is no reasonto deny its effect to defense witnesses as well. The Act makes no differen-tiation between. prosecution and defense witnesses but applies to "anyperson... (who) is a material witness" and defines a witness as a "personwhose testimony is desired in any proceeding or investigation by a Grand8 Id. 264 P.2d at 424.9 Id. 264 P.2d at 425. Note that the California judge refused to order the witness to at-tend in Oregon unless the expenses were forthcoming in advance.10 Id. 264 P.2d at 424.11158 Neb. 222, 63 N.W.2d 141 (1954).12 State ex rel. Butler v. Swenson, 243 Minn. 24, 66 N.W.2d 1 (1954); State v. Hemmen-way, 80 S.D. 153, 120 N.W.2d 561 (1963).13 State v. Lupino, 268 Minn. 344, 129 N.W.2d 294 (1964). The defendant asked for thepresence of two witnesses. One was an inmate of the federal prison at Alcatraz, California,and therefore would not seem subject to the Act. Tlhe other, however, was in South Carolina,which has passed the Act. S.C. CODE §26-301.14 Ibid.[fVol. 1Jury or in a Criminal Action, Prosecution, or Proceeding." 1 The Lupinoruling flies directly in the face of the clear and obvious meaning of thestatute, and other authority is contrary to its holding. 6IICLEAR INTENT OF THE ACTThe mandate of the Act seems clear. It states that material witnesses incriminal proceedings can be compelled to attend from another state bycourt order and provides that they must be paid mileage and per diemexpenses. No distinction is made between prosecution and defense wit-nesses. Therefore, the clear and reasonable interpretation of the statuteis that the state or county will pay all necessary expenses under the Act,whther for the prosecution or defense, and whether the defendant is indi-gent or not.There is some logic, however, in an argument that the Act should notrequire a state to bear witness expenses for a defendant who is fully ableto pay them. But this logic fails in the case of the indigent accused. To saythat the Act requires a defendant to pay the necessary expenses of securingabsent witnesses is one thing; but to say that under it a defendant withoutany money can secure out-of-state witnesses only if he pays for them is togive the Act a cruelly absurd meaning. It should be obvious that this is notthe intent of the statute.The clearest reading of the statute, then, is that the Act provides forthe summoning of absent witnesses for all defendants, with no distinctionbeing made between those with adequate means and those without ade-quate means. Even if this proposition is denied by the courts, it is difficultto see how the Act does not provide for public funds in the case of theindigent defendant. The Act requires that the witnesses be paid; and if anaccused is indigent, who but the state is to pay them? It is certainly attrib-uting an unreasonable meaning to the statute to say that it requires thedefendant to pay in such a situation.In the Blount case, discussed supra,7 three justices, while concurringin the result, argued that the Act does confer authority on the court to usepublic funds to secure the presence of witnesses for the defense:15 UNFORM ACT TO SECURE TuE ATTENDANCE OF WITNESSES FROM WITHOUT THE STATE INCRIMINAL PROCEEDINGS §§1, 3, 9 U.L.A. 91 (1957).16 WITKIN, CALrFRNIA EVIDENCE §752 at 704 (2d ed. 1966): "The statute, while doubtlessintended chiefly for the use of prosecuting officials, seems clearly available to the defendant aswell." 44 A.L.R.2d 732, 733: "The act applies both to witnesses sought by the state and wit-nesses sought by the defendant in the criminal case." In re Cooper, 127 N.J.L. 312, 33 A.2d 532(1941).17 State v. Blount, 200 Ore. 35, 264 P.2d 419 (1953).April 19671 COMMENTSUNIVERSITY OF SAN FRANCISCO LAW REVIEWA poor man, who was unable to advance his witness' expenses, might beconvicted although innocent, or a guilty man might go free, and theUniform Act would indeed be emasculated, if not totally destroyed.' 8The same justices also pointed out that since a witness is not required toattend unless he has been tendered the statutory expenses, there must beauthority to order these expenses in advance:If there is no power vested in the court to order the payment of wit-nesses' expenses in advance in order to force the attendance of an un-willing witness- then in the name of reason, what good is the act? 19It should be mentioned here that because of the requirement of materialitythere is very little danger that defendants will abuse the act by demandingthat large numbers of unnecessary witnesses be secured at public expense.As long as the defendant is obliged to show that the testimony of his de-sired witnesses will be material, he cannot place an undue burden on thepublic treasury.IIICALIFORNIA AND FEDERAL INTERPRETATIONSThe picture is not all black for the indigent criminal defendant, however.California, which has adopted the Act as part of its Penal Code,2 ° solvesthe problem by declaring in another statute2 ' that sums required by lawto be paid to witnesses in criminal cases are county charges. This wouldseem to be true whether or not the defendant could afford to pay.The California case of People v. Newville22 supports this contention.Although the defendant's request for a subpoena to compel the attendanceof witnesses absent from California was denied because there was no show-ing that the testimony of the witnesses was material, the court did notquarrel with the idea that the county would have to pay the expenses werethe defendant's motion granted. Indeed, the trial court stated:Certainly, before I would issue any order for the expenditure of countyfunds in the amount that is going to be necessary in this case, I wouldwant to know definitely that the testimony would be material and forth-coming.23In the Federal courts an indigent defendant can also obtain necessary wit-nesses by subpoena at government expense, although the trial court haswide discretion in the matter. As in state tribunals, the accused must show18 Id. at 431 (Latourette, C. J., specially concurring).19 Id. at 430 (Latourette, C. J., specially concurring. Emphasis added).20 CAL. PEN CODE §§1334-1334.6.21 CAL. GOVT. CODE §29603.22 People v. Newville, 220 Cal.App.2d 267, 33 Cal.Rptr. 816 (1963).23 Id. at 275, 33 Cal.Rptr. at 821.[Vol. 1that the expected testimony is material and that he cannot go to trial safelywithout it.24IVCONCLUSIONAs a practical matter, it is possible that many jurisdictions do furnish thedefense with out-of-state witnesses at the expense of the county or stateand that no appellate decision has been necessary to rule on this issue.However, all reported judicial decisions, aside from those of California,have been against the accused in this respect. It seems that an indigentdefendant will find the Act of little use until legislatures spell out for thecourts the proposition that an indigent defendant cannot be expected topay his witnesses' expenses. Joseph Tinney2 4 FED. R. CIu. P. 17(b).April 19671 COMMENTS

Making the Indigent Pay to Obtain Out-Of-State Witnesses

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Making the Indigent Pay to Obtain Out-Of-State Witnesses

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