211.3Securing Attendance of Witnesses

Defendants and Witnesses in Custody
Last Updated: 12/01/23

Key Concepts

  • Appearance of defendant in custody (within the state) can be secured through written request or writ of habeas corpus; for defendants held out of state see related entry on Extradition (Pretrial #114).
  • Appearance of other necessary witnesses held in custody can be secured through a court order pursuant to G.S. 15A-805, or a writ of habeas corpus.
  • Additional statutes (G.S. 15A-821, 822) provide a method for securing the attendance of witnesses held in custody by the federal government or other states.

Defendant in Custody Needed for Trial

1. Written Request
When a defendant needed for trial is confined in a penal institution controlled by the state or any of its subdivisions, the prosecutor may make a written request to have the defendant released to an appropriate law enforcement officer to produce him for trial. See G.S. 15A-711(a); AOC-CR-900 (Prosecutor’s Request for Temporary Custody of Defendant for Trial). The prosecutor’s request is sufficient on its own to authorize the release, and must be honored. See G.S. 15A-711(a). The period of temporary release may not exceed 60 days. Id.

If the defendant is being held in custody pursuant to another criminal proceeding (i.e., held in jail on pending charges in another county), the prosecutor for the other charges (and the defendant) must be given reasonable notice and opportunity to object to the temporary release. See G.S. 15A-711(b). If there are objections to the release, they must be heard by a superior court judge in the district where the defendant is being held, and the judge must make “appropriate orders” to determine which case will have precedence. See G.S. 15A-711(b).

2. Writ of Habeas Corpus
The purpose of G.S. 15A-711, discussed above, is to allow prosecutors to secure the appearance of a detained defendant for trial without  going “through the traditional, and cumbersome, ‘habeas corpus ad prosequendum’” procedures, which require the prosecutor to present the habeas application to a judge and obtain a signed writ directing the institution to deliver the defendant for trial. G.S. 15A-711, Official Commentary. The procedure in G.S. 15A-711 achieves the same result through a “simple request” from the prosecutor directly to the detention facility, which must then release the defendant to an appropriate law enforcement officer to produce the defendant for trial. Id.

Nevertheless, the attendance of a defendant being held in custody can still be secured through a traditional Application and Writ of Habeas Corpus Ad Prosequendum, if such a procedure is necessary or preferred. See AOC-CR-223 (Application and Writ). For more information, see the related entry on Writs of Habeas Corpus.

Practice Pointer

Who Drives? 
One possible distinction between a writ of habeas corpus and a prosecutor’s request pursuant to G.S. 15A-711 is that the habeas writ directs the custodial agency to “deliver” the defendant for trial, whereas the prosecutor’s request form simply directs the agency to “release” the defendant to an appropriate law enforcement officer for transport. Therefore, the method selected by the prosecutor may determine who bears responsibility for transporting the defendant to the local jail for trial: the detention facility currently holding the defendant, or an officer sent from the requesting county. For a more in-depth discussion of this issue, see "Writs for Incarcerated Defendants: Who Drives?," Jamie Markham, N.C. Criminal Law Blog, July 15, 2015.

For defendants who are being held in custody out-of-state, see the related entry on Extradition – Interstate Compact and Detainers.

Witnesses in Custody Needed for Trial

Two separate statutory provisions allow a prosecutor to secure the attendance of witnesses confined in institutions within North Carolina: a court order pursuant to G.S. 15A-805, or a writ of habeas corpus ad testificandum. Either provision can be used. A court order under G.S. 15A-805 is broader in one respect because it can secure the attendance of people confined in institutions other than prisons and jails (see discussion below), while the writ of habeas corpus is broader in another respect because it allows a prisoner or jail inmate to be brought back for civil as well as criminal proceedings.

1. Court Order
Upon a motion of the state or the defendant, a judge of a court with a pending criminal proceeding must, for good cause shown, enter an order requiring that a person confined in an institution in North Carolina be brought to court to testify as a witness. G.S. 15A-805. There is no designated AOC form for this motion and court order. “Institution” is not defined in the statute, but the term clearly includes a prison or jail, and may also include other institutions such as a mental health facility where a person has been involuntarily committed. See Official Commentary to G.S. 15A-805 (“order for the production of a prisoner (or other person confined in an institution)”). G.S. 15A-805 does not require that the motion be in writing, accompanied by an affidavit, or made within a certain time. The statute also does not specify any particular method by which the movant show the “good cause” necessary to the production of the witness. See State v. Rankin, 312 N.C. 592, 597-98 (1985).

If the prisoner has pending criminal proceedings and the judge determines that the order of production would unreasonably interfere with those prior proceedings, the judge may deny the motion. G.S. 15A-805(b). If an order of production is obtained for a prisoner with pending criminal proceedings, the prisoner or the prosecutor in the district where the charges are pending may apply to a judge or justice in the appellate division and request that the order of production be vacated for good cause shown. G.S. 15A-805(b).

2. Writ of Habeas Corpus
Independently of G.S. 15A-805, an alternative procedure to obtain the presence of a person confined in a jail or prison to testify at a criminal or civil proceeding is also laid out in G.S. 17-41 to 46. See also AOC-G-112 (Application and Writ of Habeas Corpus Ad Testificandum). For more information, see the related entry on Writs of Habeas Corpus. The application for the writ must:

  1. Be made by the party to the proceeding or by his or her attorney;
  2. Be verified by the applicant;
  3. State the title and nature of the proceeding for which the prisoner’s testimony is desired; and
  4. State that the prisoner’s testimony is material and necessary to the proceeding.

Witness in Custody in Another State

If a prisoner (other than a person confined as mentally ill) who is confined in another state is needed as a witness in a criminal proceeding in North Carolina, the state or the defendant may apply to the court where the action is pending for a certificate securing the attendance of the prisoner. G.S. 15A-822. There is no designated AOC form for the application or certificate.

The judge may issue the certificate if:

  1. There is reasonable cause to believe that the prisoner possesses material information; and
  2. The state in which the prisoner is confined has a statute that is equivalent to G.S. 15A-821 (permitting prisoners in North Carolina to testify in proceedings in other states).

The certificate, if issued, must:

  1. Be under the seal of that court;
  2. Certify that the prisoner is a material witness in a pending criminal proceeding; and
  3. Specify the number of days that the prisoner’s attendance is required.

See G.S. 15A-822(a)(4). After the certificate is issued, the judge may cause it to be delivered to a court of another state that is authorized to initiate or undertake action to deliver prisoners to North Carolina as witnesses. G.S. 15A-822(c).

Witness in Federal Prison

The state or the defendant may secure the attendance of a witness who is confined in a federal institution by making application in the court where the defendant’s criminal proceeding is pending. The applicant must show that there is “reasonable cause” to believe that the witness “possesses information material” to the pending proceeding. G.S. 15A-823. There is no designated AOC form for the application or certificate.

Upon a party’s application, the judge may issue a certificate (known as a writ of habeas corpus ad testificandum) addressed to the Attorney General of the United States, certifying that there is reasonable cause to believe that the prisoner possesses material information and requesting the Attorney General to have the prisoner brought to court “for a specified number of days under custody of a federal public servant.” G.S. 15A-823(a)(3). The judge, after issuing the certificate, “may cause it to be delivered to the Attorney General of the United States” or to his or her authorized representative. G.S. 15A-823(c). It is the policy of the U.S. Bureau of Prisons to allow federal prisoners to testify in state court criminal proceedings pursuant to a writ of habeas corpus ad testificandum issued by a state court. See Barber v. Page, 390 U.S. 719, 724 (1968). More information about the U.S. Marshals Service and U.S. Bureau of Prisons policies on assisting with writs for the production of federal inmates can be found on their website here.

*Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume II, Chapter 29, and “Securing Attendance of Witnesses,” North Carolina Superior Court Judges’ Benchbook, Robert Farb (April 2015).