211.2Securing Attendance of Witnesses
- Witnesses located outside the state may not be served with a standard subpoena; their attendance must be secured through the statutory process in G.S. 15A-813.
- Failure to comply with a lawful order directing the witness to appear will subject the person to sanctions in the other state comparable to failure to comply with an in-state subpoena.
Obtaining a Certificate for Attendance of Out-of-State Witness
A prosecutor can secure the attendance of a material witness located outside of North Carolina by obtaining a subpoena through the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. See G.S. 15A-813; State v. Cyrus, 60 N.C. App. 774 (1983) (explaining that the Act “gives the trial court the means to compel a non-resident witness to attend and testify at criminal proceedings in this State”); State v. Tindall, 294 N.C. 689 (1978) (attendance of out-of-state witness must be secured through the Act, rather than a material witness order under G.S. 15A-803). The Act was completed in 1936, and a version of it has now been adopted by all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.
The statute allows a judge in North Carolina to issue a certificate, bearing the official seal of the issuing court, which states that the person is needed as a witness in a court proceeding and the number of days that the person is needed. See AOC-CR-901M (Certificate for Attendance of Out-of-State Witness). The applicant must show that the person requested to be a witness “is a material witness” in a proceeding that is pending in a court of record in this state. G.S. 15A-813. If appropriate, the certificate may make a recommendation that the person be taken into custody and delivered to an officer of this state to ensure the witness’s attendance. In addition to making an adequate showing that the testimony of the prospective witnesses is material, the applicant must adequately designate the location where the witness can be found. See State v. Tindall, 294 N.C. 689 (1978).
If the judge finds that the applicant has made a sufficient showing to secure the witness’s presence, he or she will issue a certificate that sets out the facts and specifies the number of days the witness will be required to attend. G.S. 15A-813. The certificate and order must be “presented to a judge of a court of record in the county [of the other state] in which the witness is found,” and it may include a recommendation that the witness be immediately taken into custody and delivered to an officer of this state to assure his or her attendance. G.S. 15A-813. The judge in the witness’s home state then may have the witness appear before him or her to determine whether to issue an order. See 81 AM. JUR. 2D Witnesses § 48 (2004); see also G.S. 15A-812 (witness in North Carolina may be summoned to another state to testify if found to be a material and necessary witness and no undue hardship will result). If the home state judge finds that the witness is material and necessary, will suffer no undue hardship, and will be protected from arrest and service of process by the trial state, he or she may issue an order directing the witness’s attendance in North Carolina. See Preston v. Blackledge, 332 F. Supp. 681 (E.D.N.C. 1971); State v. Tindall, 294 N.C. 689 (1978).
Compliance and Enforcement
The out-of-state witness is entitled to compensation for mileage, plus $5.00 for each day that he or she is required to travel and attend as a witness. If the witness is required to appear for more than one day, he or she also is entitled to reimbursement of actual expenses incurred for lodging and meals in the same manner as state employees who are authorized to travel within the state. G.S. 7A-314(c); G.S. 15A-813; AOC-CR-235 (Witness Attendance Certificate, Side Two).
Paid in advance?
Occasionally a witness will request advance payment of his or her travel expenses in order to pay for a rental car, gas, meals, etc., to facilitate coming to court. However, the statute only provides for a witness to be “compensated” after he or she has “traveled from his/her place of residence and appeared for the purpose of testifying in this case.” See G.S. 15A-813; AOC-CR-235. Therefore, rather than agreeing to a reimbursement in advance, the better option would be to assist the witness through alternative travel arrangements, such as having an officer drive the witness to court. Prosecutors should always consult with their elected district attorney before agreeing to any special witness accommodations.
If a witness fails to comply with an order directing him or her to attend a North Carolina proceeding, the witness may be punished by the home state court in the same manner as if the failure had been to attend a trial in the home state. See Preston v. Blackledge, 332 F. Supp. 681 (E.D.N.C. 1971); see also G.S. 15A-812 (providing this remedy when a North Carolina witness fails to comply with an order to attend out-of-state proceedings). Additionally, if a witness comes to this state and then fails without good cause to attend and testify as directed by the order, he or she may be punished as any other witness who disobeys an order issued from a North Carolina court of record. G.S. 15A-813.
Finally, the statute directs that if a nonresident witness comes to North Carolina in obedience to an order directing him or her to attend and testify, the witness may not be arrested or served with other criminal or civil process in connection with matters that arose before he or she entered this state under the order. G.S. 15A-814.