Slivka, William

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Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 10 | Issue 41959Constitutional Law--Uniform Law to SecureAttendance of Witnesses UpheldWilliam SlivkaFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationWilliam Slivka, Constitutional Law--Uniform Law to Secure Attendance of Witnesses Upheld, 10 Wes. Res. L. Rev. 611 (1959)Available at: https://scholarlycommons.law.case.edu/caselrev/vol10/iss4/16RECENT DECISIONScontractor who does dangerous and highly specialized work is not doingwork traditionally done by seamen. It is not dear from the decisionwhether Halecki was denied the use of the doctrine because of thespecialized work or the fact that it was dangerous. With the complexityof modern ships it is difficult to visualize many jobs that will not requirespecialized skills or be dangerous. The Court should have overruled theSieracki and Hawn cases or should have followed the trend these casescreated. In either event it is unfortunate that they left the lower courtsno workable guide for determining what constitutes "seamen's work."Once again the hazards of the sea have their equal in the hazards ofjudicial review.WILLiAm TELZROWCONSTITUTIONAL LAW - UNIFORM LAW TO SECUREATTENDANCE OF WITNESSES UPHELDRespondent O'Neill, a citizen of Illinois, had traveled to Florida toattend a convention. A New York judge, acting through a Florida cir-cuit court, summoned him to testify in a grand jury proceeding in NewYork. The Florida court refused1 to grant this request made pursuant toa Florida statute2 entitled the "Uniform Law to Secure the Attendance ofWitnesses from Within or Without a State in Criminal Proceedings."3The court held that the statute was unconstitutional on the ground thatit contained no provision for bail and, hence, violated due process oflaw.4 In most jurisdictions a witness may enter into a recognizance withthe court to appear and testify and the judge may require such witnessto post bail as a guarantee of his appearance.5 It is only after the wit-ness fails to comply with the recognizance that he may be jailed. TheUniform Act did not provide for such bail. The Supreme Court of Floridaaffirmed7 the decision on other grounds, viz., that the statute violated the1. In re O'Neill, 9 Fla. Supp. 153 (Cir. Ct. 1956).2. FI.A. STAT. § 942.02 (1957). This uniform act is also in effect in forty-threeother states and Puerto Rico.3. 9 UNIFORM LAws ANN. 86 (1957).4. U.S. CONsT. amend. XIV, § 1; "... nor shall any State deprive any person oflife, liberty, or property, without due process of law... "5. Omo REv. CODE § 2937.16.6. OHio REV. CODE § 2937.18.7. Application of New York, 100 So.2d 149 (Fla. 1958).19591WESTERN RESERVE LAW REVIEWprivileges and immunities clause of the fourteenth amendment8 by abridg-ing the right of citizens to move freely among the states.9In overruling the Florida court the United States Supreme Court de-clared' that the "fugitive from justice" clause" of the federal constitutiondid not deny the states the privilege to formulate, through cooperation, anagreement to deliver witnesses from one state to another in criminalcases; that the obligation to testify did not interfere with the witness'sright of ingress and egress, for in this day and age a person can travelrapidly and conveniently from state to state. Furthermore, O'Neill wasrequired to stay in New York for only one day. The Court added thatthe statute applied to residents as well as non-residents and therefore wasnot discriminatory.The Court based its decision largely on policy, stating that this typeof agreement facilitated comity among the states, and to hold that thisand other similar arrangements are beyond the power of the states be-cause there is no specific provision in the Constitution would hobble theeffective functioning of our federalism. The United States Supreme Courtfound that O'Neill was afforded procedural due process as he was given ahearing to determine if his testimony was necessary, if the trip would bean undue hardship, and whether he would be accorded immunity fromjudicial process in the states through which he traveled.The matter of bail, which was the basis of the Florida lower court'sdecision, was not reviewed, as it was not discussed by the Florida SupremeCourt.The dissent declared that O'Neill's right of ingress and egress12 wasviolated, and to say that -he would be gone only temporarily was beggingthe question. They said a state could compel a citizen to travel fromone state to another only if he were a fugitive from justice,'3 and O'Neillwas not. The minority accused the majority of amending Article Four,Section Two, of the Constitution to include "witnesses." The dissent alsosaid that Congress had completely pre-empted the field of interstate de-8. U.S. CONST. amend. XIV, § 1; "No State shall make or enforce any law whichshall abridge the privileges or immunities of citizens of the United States...."9. Crandall v. Nevada, 73 U.S. (Wall) 35 (1867). The Court stated that theright of a person to travel between the states without restraint is a right he possessesas a national citizen.10. New York v. O'Neill, 359 U.S. 1 (1959).11. U.S. CONST. art. IV, § 2; "A person charged in any State with Treason, Felony,or other Crime, who shall flee from Justice, and be found in another State, shall onDemand of the executive Authority of the State from which he fled, be delivered up,to be removed to the State having Jurisdiction of the Crime."12. New York v. O'Neill, 359 U.S. 1, 12 (1959) (dissent).13. U.S. CONST. art. IV, § 2.[SeptemberRECENT DECISIONSlivery of witnesses by making it a crime for a person to flee interstateto avoid giving testimony in certain criminal cases.14The uniform act is efficacious because it removes restrictions im-posed on the states due to their limited jurisdiction. The only othermeans that a state has to procure the testimony of a witness outside itsterritory is through the use of depositions or, if the case comes within itsprovisions, use of the Fugitive Felon Act.1 5 Compelling the states to usedepositions would be impractical because of the defendant's right of con-frontment.J6 The federal act covers only the situation where the witnessflees interstate to avoid giving testimony and is not applicable when thewitness remains in one state or has no intent to avoid testifying.7' Theselimitations make necessary the uniform statutes.Some difficulties may arise as a consequence of the uniform act.Officers know how to handle a fugitive in escorting him from state tostate, but a witness presents a different problem. Can he be escortedin handcuffs if he refuses to accompany the officer? If he attempts toescape may he be subdued as a common criminal? The best answerthat can be given is to attempt to draw an analogy from statutes whichcompel a local witness to testify in criminal proceedings. Most of thesestatutes permit the court -to jail the witness if he refuses to testify orenter into a recognizance with the court.' Thus, if a witness may bejailed for refusing to testify, it would seem that he could be compelledagainst his will to 'travel from one state to another without violating thefourteenth amendment.The only valid objection to the statute itself is that it does not providefor bail. The Court's refusal to entertain this issue could be interpreted asa desire to uphold the constitutionality of the law in general with a hintthat something should be done to provide an opportunity for bail. Ifsome provision is not made for bail, the Court may rule differently thenext time the statute comes before them and the issue of bail is raised.Because of this factor a few states 'have amended the uniform statute toprovide for bail' 9 The bail amendment should be followed in other14. 18 U.S.C. § 1073 (1952).15. Ibid.16. OHIO Rnv. CODE § 2945.53 provides that the accused shall have the opportu-nity to be present in person at the taking of a deposition to be used by or against him.17. In Barrow v. Owen, 89 F.2d 476 (5th Cir. 1937), the court declared that mereabsence from the state of prosecution was not sufficient proof of the crime underthe fugitive felon act.18. Omo REv. CODE § 2937.18.19. See AIz. REv. STAT. ANN. § 13-1863(B) (1956); CAL. PEN. CODE1334.3 (1956); LA. REv. STAT. ANN. § 15:152.1 (1951); MD. ANN. CODE art.27, §5 618, 619 (1957); MIss. CODE ANN. § 1895 (Recompilation 1956); MONT.19591614 WESTERN RESERVE LAW REVIEW [Septemberjurisdictions rather than take the risk of nullifying a useful statute.Whether the lack of opportunity to post bail presents an undue -hardshipand denies the witness procedural due process can only be determinedwhen the question is decided by the Supreme Court.In upholding the constitutionality of the uniform act, the Court haspermitted the states to employ an effective and expedient device for se-curing the testimony of witnesses who may be scattered throughout thenation.WI.LLM SL1VKAREv. CoDE ANN. § 94.9003(2) (Supp. 1957); N.Y. CODE CRIM. PROC.618-a(3) (1958); PA. STAT. ANN. tit. 19, § 622.2 (Purdon Supp. 1957); R-1.GEN. LAws ANN. tit. 12, ch. 16, § 8 (1956).

Constitutional Law--Uniform Law to Secure Attendance of Witnesses Upheld

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Constitutional Law--Uniform Law to Secure Attendance of Witnesses Upheld

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