Subpoenaing Out-Of-State Witnesses
Somehow I seem to have become the go-to guy for out-of-state lawyers trying to get Harris County witnesses subpoenaed to trial out-of-state. This is sort of a see-one-do-one-teach-one procedure, and I’ve done five, so it’s time for me to pass on what I know.
The procedure is contained in the Uniform Act to Secure Attendance of Witnesses from Without State. According to California lawyer Robert Scofield, the Act has been adopted by every state but North Dakota, and by the District of Columbia and the Virgin Islands. North Dakota Century Code 31−03−25 through –31, however (PDF), looks substantially the same as the Act (one of North Dakota’s twelve lawyers can perhaps confirm my impression).
In Texas, the Act is codified at Code of Criminal Procedure Article 24.28.
Summoning a witness from, say, Texas to Nebraska is a six-part procedure:
- Lawyer in Nebraska gets a Certification from Nebraska judge “that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this State is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days.”
- Lawyer in Nebraska sends Certification to lawyer in Texas.
- Lawyer in Texas gets Texas court to issue an Order of Appearance at hearing. (Here’s a sample motion asking the Texas court to do so.)
- Lawyer in Texas gets witness served with Order of Appearance.
- At hearing, Texas judge determines whether the witness is material and necessary (an issue that should be resolved by the Nebraska judge’s Certification), whether it will cause undue hardship to the witness to be compelled to attend and testify in Nebraska, and whether the laws of Nebraska give the witness protection from arrest and the service of process. If he is, it won’t, and they do, the judge issues a Summons directing the witness to attend and testify in the court in Nebraska.
- The Nebraska lawyer pays for the witness’s travel and lodging expenses.
It’s not complicated at all. In Harris County, the District Clerk now drafts the Order of Appearance and the Summons. He doesn’t do it quite the way I would, but it seems to work. I’ve included links to PDFs of the documents I drew up in case your clerk isn’t as proactive as ours.
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Mark:
Serious thanks as this is a constant thorn.
Excellent! I can’t tell you how many lawyers operate under the belief that subpoena power dies at the state line.
What if I need to subpoena business records?
Rick, I’ve found that companies comply with faxed subpoenas for records without requiring me to jump through the hoops of getting formal service. If one ignored my subpoena, I would subpoena the custodian of records to come to court, and get him served under the Uniform Act.
Do you know anything about a waiver of the hearing if a witness in ND will stipulate to the criterian necessary under NDCC 31−03−26?
Marc, I’d be inclined to require the witness to appear before the ND judge and be served with the order. I don’t know that it’s enforceable otherwise.