Off the Back: How to Subpoena an Out-of-State Witness - By Stephen Gustitis

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Friday, October 7th, 2016

Successfully summoning an out-of-state witness to testify in Texas is a chore. Texas Code of Criminal Procedure, Article 24.28, is entitled Uniform Act to Secure Attendance of Witnesses from Without State. Section 4 provides our authority to subpoena a witness from another state. The process is error-prone and rarely guaranteed. Nonetheless, your out-of-state witness may be the lynchpin of your case. To this end, some insight into the logistical pitfalls may save you hours of work and millimeters of stomach lining. Of course, the following is only a primer to assist in understanding the scope of the problem. It won’t substitute for your independent research.

First, you’ll need to build a sister-state team. A licensed attorney and investigator in the state where your witness is located are your most indispensable assets. They do the heavy lifting. Consequently, choose dependable and committed people you can trust. Experienced lawyers are worth their weight in gold. Pay them whatever they want . . . the peace of mind is worth it. I’ve had success working with federal or state public defender offices in the sister-state. They know what’s at stake and how much you are depending upon them. Plan on 30–90 days to obtain the out-of-state subpoena and to serve your witness. In addition, you are responsible for making witness travel arrangements and paying for room and board. Be prepared to pay for these expenses in advance, and be poised to assure the sister-state judge these expenses are covered.

The next step (and easiest) is filing an application for the out-of-state witness with the applicable Texas court in which your case is pending. The application must assert the witness possesses material evidence. The application must assert the last-known location of the witnesses, how long they are needed, and through which states they must travel to arrive in Texas. The application must also assure these states will give the witness protection from arrest and service of civil and criminal process in connection with matters arising before their entrance into said state. The template I used for this application was obtained from the “Investigator Desk Reference Manual,” Austin, TX: Texas District & County Attorneys Association, Merillat, A. P. (2006). The Texas court judge must then issue a certificate stating these facts are true and enter an order advising the sister-state judge that the presence of the witness is necessary for the administration of justice. This certificate may also include a recommendation the witness be taken into immediate custody and be delivered to an officer of Texas to assure attendance in court.

Following this, a certified copy of the Texas certificate must be filed in the county where your witness is located. The presiding judge in that jurisdiction will conduct a hearing to determine whether the witness is material, necessary, and whether complying with the subpoena would cause the witness undue hardship. Your sister-state attorney will determine the proper titles for these documents, complete the filing in the appropriate county, and get a hearing date set. In addition, your investigator must coordinate with the attorney in locating the witnesses and bringing them before the sister-state court for the hearing. Sometimes the witnesses can waive their appearance and agree to be served. Otherwise, the witness must appear at the courthouse and participate in the hearing. After the application hearing occurs, the presiding judge there will issue a summons (subpoena) for the witness to appear in Texas. Your investigator then serves this summons on the witness. It directs the witness to appear for testimony as outlined in your original Texas application. The final problem is getting the witness on the bus, plane, or train to transport them to your jurisdiction. Of­ten­times the witness may have never traveled on a bus or airplane before. This is where your trusted sister-state investigator can help assure the witness makes the bus stop or boarding gate on time with ticket, boarding pass, itinerary, and proper iden­ti­fi­cation in hand.

Building a reliable team and planning ahead are keys to success in securing the out-of-state witness for trial. In fact, your team is indispensable. Moreover, the relationships you build with them make this stressful process as smooth as possible. But even in the best of circumstances, you won’t know it worked until you lay eyes on the witness at the airport. Finally, you may be asked to return this favor someday. Always be ready to help a fellow defense attorney in need.