Securing an out-of-state witness

Kimberly Duncan

Assistant Criminal District Attorney in Dallas County

How to bring witnesses from outside Texas and respond to such requests from authorities in other states

For a Dallas County prosecutor, obtaining a subpoena for a material witness residing in Dallas County is as simple as applying for a subpoena under art. 24.03 of the Texas Code of Criminal Procedure. If the same Dallas County prosecutor has a material witness residing in Tarrant County, it is, again, no problem. Article 24.16 entitles the State or defense to a subpoena for an out-of-county witness in felonies and misdemeanors punishable by confinement.
    What if the Dallas County prosecutor determines that a material witness resides in Oklahoma County, Oklahoma? Problem? Not at all!
    The Uniform Act to Secure Attendance of Witnesses From Without State (which I’ll call the Act) is the tool for securing the attendance of witnesses who do not reside in Texas. The Act, which has been adopted by all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands, is codified in art. 24.28 of the Texas Code of Criminal Procedure and provides the method for obtaining the presence of witnesses outside a state to testify at grand jury investigations, criminal trials, and other proceedings in the state.1 The Act explains the procedures for obtaining nonresident witnesses in Texas prosecutions as well as the procedures for requests for Texas-based witnesses in out-of-state prosecutions.
    For the past six years, I have assisted prosecutors in other states in securing the appearance and testimony of material witnesses located in Dallas County; over that time, I have familiarized myself with the process, learned the ins and outs of the Act, and become aware of potential pitfalls. I have also assisted other Dallas prosecutors in utilizing the Act to obtain testimony and the production of evidence from witnesses in other states, including material and necessary witnesses in numerous murder and capital murder cases.

Basics for Texas requests
The Act requires action in both the requesting state and the witness’s home state. Once a prosecutor determines that a material witness does not live in Texas, she should determine where the witness is located. Some attempts fail at this initial stage—without sufficient information regarding the witness’s whereabouts, the State will not be able to provide adequate information to enable the witness’s home state to locate the witness. Additionally, this information is critical to determining the county in which the witness resides in the other state. Ascertaining the proper county and, ultimately, the proper person in that county to handle an out-of-state witness request is vital to the process.
    Contacting the district attorney or other appropriate county prosecutor in the county where the witness resides early in the process is helpful for several reasons. First, it will provide a contact person so a time-sensitive request does not float aimlessly around the district attorney’s office in the witness’s home jurisdiction. Additionally, by communicating with a prosecutor in the witness’s home state at the beginning of the process, a prosecutor can minimize or eliminate future issues by determining if the other jurisdiction has any special requirements pertaining to out-of-state witnesses and the form or content of the pleadings.
    After determining the location of the witness, the State then files a Motion to Secure the Attendance of Out-of-State Witness or an Application for a Certificate of Materiality in the court in which the case is pending. Additionally, the prosecutor should prepare a certificate for the judge to sign. The judge’s certificate is the most important document in the entire process. The proceedings in the witness’s home state center on the receipt of a certificate, under the seal of the court, from a court of record in the requesting state. Accordingly, it is crucial that the certificate contain the following:
•    a statement that a criminal prosecution is pending in the court or that a grand jury investigation has commenced or is about to commence;
•    a statement that the requested witness is a material witness for the State of Texas in the criminal proceeding;
•    the specific number of days that the witness will be required; and
•    the seal of the court.2
    The Act provides that, at a hearing in the witness’s home state, the information in the certificate is prima facie evidence of all the facts stated therein.3 Therefore, it is beneficial to provide as much information as possible in the State’s initial motion and the judge’s certificate.
    While the Act requires only that the certificate contain these assertions, a judge in the witness’s home state will be required to determine that:
1) the witness is material and necessary;
2) it will not cause undue hardship to the witness to be compelled to attend and testify; and
3) the witness will be exempt from arrest and service of process.
    It is, therefore, the best practice to include further elucidation on the witness’s materiality, his exemption from arrest and service of process, and the absence of undue hardship in the motion and certificate to help ensure a smoother court proceeding in the witness’s home state. Additionally, some jurisdictions expressly require more than a “mere conclusory” statement of the witness’s materiality.4 As a practical matter, if describing the witness’s expected testimony in the body of the motion and certificate would be too lengthy, a prosecutor or investigator can attach an affidavit detailing the same to the motion.
    Section 5 of the Act protects the witness from arrest and service of process while in this State and while traveling, and the judge in the witness’s home state will be required to determine that the witness will be exempt from arrest or service of civil or criminal process.5 As such, it is a good practice to include a provision in the motion and certificate expressly recognizing and explaining this exemption. This section should explain that a person entering the State in obedience to a summons directing him to attend and testify in this State shall not, while in this state or in any state through which he passes pursuant to such summons, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons. Under the express language of this provision, a witness cannot be arrested or otherwise served with process while in the state pursuant to the summons, but it does not bar the State from arresting the person if he commits a criminal act while in the state pursuant to the summons, nor does it create a future bar to an arrest for prior acts once the person has complied with the summons and returned to his or her home jurisdiction.
    Likewise, because the judge in the witness’s home state will be required to make a determination whether the witness will suffer an undue hardship if compelled to attend and testify, including a provision in the motion and order stating that attendance in the matter will not cause the witness undue hardship can be helpful. Finally, the motion and certificate should include recognition of the State’s responsibility to compensate the witness with required witness fees as well as transportation and lodging expenses.6
    Once the motion has been filed and the certificate signed by the trial court judge and affixed with the seal of the court, it should be sent to the contact person in the witness’s home state. In addition to the motion and certificate, be sure to include any other documentation or items required by the other state. A cover letter with as much contact and identifying information for the witness as possible will help make the process proceed smoothly as well. It is incredibly helpful to include a letter addressed to the witness to provide her with a contact person in your own office. Some states may also require a check for any witness fees due to the witness under her state law. Notably, some jurisdictions, particularly counties with smaller district attorney’s offices, may also request preparation of documents for filing in their court.
    Upon receipt of the State’s motion and the certificate, the prosecutor in the witness’s home state will present it to a judge. Generally, the prosecutor will file a motion with the Texas motion/application and certificate and present an order setting a show-cause hearing to a judge in that jurisdiction for signature. After the judge signs the show-cause order, the witness will be served with the order and all of the supporting documentation. At that point, the witness will be required to attend the show-cause hearing in his home county.
    At this stage in the process, many jurisdictions permit a witness to sign a written waiver of hearing in which he agrees to appear and testify in the requesting state. The Act does not expressly provide for waiver, but it is a common practice with cooperative witnesses and eliminates the need for a witness to appear for a show-cause hearing. If appropriate under the specific witness’s circumstances and permitted by his home jurisdiction, the officer responsible for serving the witness with the show-cause order can provide the witness with the show-cause order, certificate, and letter from the requesting prosecutor and present the witness with a waiver of hearing form to sign. Be aware, however, that not all jurisdictions allow witnesses to waive the show-cause hearing, and it can vary between counties within the same state. Also, it is not wise when dealing with uncooperative witnesses; a court hearing and official summons directing the witness to attend and testify at the Texas proceeding are always the best practice when dealing with an uncooperative witness.
    At the show-cause hearing, the witness will have an opportunity to explain any reason why he should not be required to travel to Texas to testify. Because the judge’s certificate is prima facie evidence of all the facts stated therein, a certificate containing ample detail regarding the materiality of the witness and setting forth a reasonable number of days for the witness to appear and testify will be very useful to the judge’s determination.
    If the judge determines 1) that the witness is material and necessary; 2) that it will not cause undue hardship to the witness to be compelled to attend and testify; and 3) that the laws of this state (and of any other state through which the witness may be required to pass by ordinary course of travel) will protect him from arrest and service of civil and criminal process, the judge shall issue a summons directing the witness to attend and testify at the Texas trial, grand jury, or other proceeding as requested.7 The witness will then be required to attend the Texas proceeding and be subject to the penalty for disobeying a subpoena in their home jurisdiction if they do not comply. Once directed to appear and testify, the witness should then contact the requesting county in Texas to make travel arrangements.

Specialized requests
Significantly, the Act also provides a mechanism for a material witness to be brought immediately before a judge in his home jurisdiction, and at the conclusion of a hearing, taken into custody and delivered to a Texas officer.8 To rely on this provision, the judge’s certificate must include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to assure his attendance.9 If the certificate includes such a request, the judge in the witness’s home state may direct that the witness be “forthwith brought before him for said hearing,” instead of setting a show-cause hearing and giving the witness advance notice of the hearing.10 Once the witness is brought before the judge, the judge can order the witness into custody to be delivered to a Texas officer.
    As a practical matter, this is a useful tool, but it requires a great deal of communication and cooperation between the two jurisdictions involved to have the witness served at a time when he can be brought directly before a judge in his home jurisdiction and efficiently transferred to an officer from Texas. The Dallas County District Attorney’s Office recently assisted the State of California with a request for a witness that included a recommendation that the witness be taken immediately into custody, and the request was clearly necessary to secure the witness’s attendance at the California proceeding. The witness was a fellow gang member of the defendant in a murder trial and had, at a minimum, seen the defendant with the murder weapon immediately after the shooting; the witness may have even provided the murder weapon to the defendant. The Fugitive Section of the Dallas Sheriff’s Office picked up the witness in the early morning hours, brought him immediately to court, and at the conclusion of the hearing, transferred him directly to two officers from the State of California.
    Another common scenario involves a request for the production of documents or other physical evidence. It is important to recognize that the Act specifically refers to the appearance of a witness to provide live testimony and does not mention a subpoena duces tecum. Accordingly, not all jurisdictions are receptive to requests to compel the production of documents or other physical evidence, particularly when the request is not made in conjunction with a request for the appearance of the witness.11 Many jurisdictions, including Texas, do, however, permit subpoenas duces tecum.12
    A common practice when requesting the production of documents or other physical evidence is to request the attendance of the custodian of records to appear and produce the requested evidence. If a business-records affidavit from the custodian of records for the evidence would be sufficient to authenticate the evidence, the motion and certificate could provide for a live appearance by the witness to produce the evidence or, in lieu of personal appearance, submission of the requested evidence and a business records affidavit received prior to the date of the proceeding.
    Again, while not expressly stated in the language of the Act, the Act can be used to obtain the testimony of witnesses who are minors. Article 24.011(a) of the Code of Criminal Procedure authorizes a Texas court to issue a subpoena directing a person having custody, care, or control of a child younger than 18 years to produce the child in court. Other states generally have similar statutory provisions for securing the attendance of minor children as witnesses. Therefore, in requesting the attendance and testimony of a child witness, the State’s motion and certificate should request that the minor child’s parent or guardian be directed to produce the child in court.

Responding to requests
If you receive a request for an out-of-state witness, the first step is to verify that the address is located in your specific county and that the certificate from the judge in the requesting state is under the seal of the court and includes the statutorily required information: a statement that there is a criminal prosecution pending or a grand jury investigation that has commenced or is about to commence, a statement that the witness is material to the prosecution, and the number of days that the witness will be required to appear and testify.13 If any of the information is omitted, contact the requesting state immediately so authorities there can correct the problem and resend the certificate.
    To help the process move smoothly and to provide the information to the judge who will ultimately conduct the show-cause hearing in a clear manner, a good approach is to prepare a motion for a show-cause hearing setting forth all of the information in the certificate from a judge in the requesting state as well as a proposed order setting a show-cause hearing to present to the judge. The petition can then be filed in any court of record with the requesting state’s certificate with any supporting motions from the requesting state attached. The filed motion should be presented to the trial court along with the prepared show-cause order setting the time and date for a hearing and ordering the witness to appear at the hearing. Once the order setting the show-cause hearing is signed, the witness should be served with notice of the hearing and a copy of the show-cause order.
    At the hearing, the judge must determine the following before issuing a summons directing the witness to appear and testify in the requesting state:
1)    the witness is material and necessary;
2)    it will not cause the witness undue hardship to be compelled to attend and testify in the prosecution or grand jury proceeding in the other State; and
3)    the laws of the requesting state (and of any other state through which the witness may be required to pass by ordinary course of travel) will give the witness protection from arrest and service of civil or criminal process.
    It is helpful to ask the trial court to take judicial notice of the petition and attached certificate filed in conjunction with the request and to remind the court that the requesting state’s certificate is prima facie evidence of all the facts stated therein. If the requesting State has provided an affidavit with additional information regarding the witness’s materiality or any other matters relevant to the hearing, offer it in support of the request at the hearing.

Conclusion
Prosecutors can clearly benefit from understanding the Uniform Act to Secure Attendance of Witnesses From Without State and by following its procedures to obtain testimony from witnesses living outside of Texas. Additionally, by assisting other jurisdictions in obtaining the appearance and testimony of witnesses living in Texas, Texas prosecutors can provide valuable assistance to our sister states in their prosecutions, while building connections that may prove helpful in future cases.

Endnotes

1 Tex. Code Crim. Proc. art. 24.28; see also Tracy v. Superior Court, 810 P.2d 1030, 1033 n.2 (Ariz. 1991) (noting that the Uniform Act has been adopted by all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands); Studnicki and Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law, 76 St. John’s L. Rev. 483, 532 (2002) (same).
2 Tex. Code Crim. Proc. art. 24.28 §4(a).
3 Id. §3(b).
4 Compare Ex parte Armes, 582 S.W.2d 434 (Tex. Crim. App. 1979) (concluding that a certificate from a requesting state stating that a witness is material and necessary is sufficient to support a finding of materiality and necessity for purposes of the issuance of a summons under the Act), with In re Adams, 356 N.E.2d 55 (Ill. 1976) (deciding that mere conclusory statements in a certificate that a witness is material will not justify a finding of materiality by a court in the state where the witness is located and that the determination of whether a witness is material and necessary should be made by the local court rather than a court in the requesting state).
5 Tex. Code Crim. Proc. art. 24.28, §5.
6 The Comptroller of Public Accounts will help pay for expenses related to out-of-county and out-of-state witnesses; see Tex. Code Crim. Proc. art 35.27 §6.
7 Id. §3(b).
8 Id. §4(a).
9 Id.
10 Id. §3(c).
11 See, e.g., GM Corp. v. Florida, 357 So.2d 1045 (Fla. Dist. Ct. App. 1978) (holding that the Act does not apply to requests solely for the production of documents).
12 See, e.g., In re Bick, 372 N.Y.S.2d 447 (1975) (concluding that “the term ‘subpoena’ subsumes a subpoena duces tecum requiring the production of books and records”); In re Saperstein, 104 A.2d 842 (N.J. Super. Ct. App. Div. 1954) (construing the term “subpoena” to include a subpoena duces tecum).
13 Id. art. 24.28, §3(a).