User’s Guide to Out of State Subpoena “file” – WITNESSES

ORS 136.623 – 136.637: The state from which you want to subpoena a person or record must have implemented the Uniform Act. You can find the corresponding state code in the green book, Uniform Laws Annotated, Volume 11, page 1. You can then go to the Cornell University website to determine whether the corresponding state’s statute has been amended or otherwise changed.

Ex Parte Motion for Certificate to Secure the Attendance of Witness from Without the State.

Affidavit in support of motion, explaining why the out-of- state witness/documents are necessary to the defense.

Certificate to Secure the Attendance of Witness from without the State.

Petition for an Order allowing defendant to proceedin Forma Pauperis; and for the witness to appear and show cause; and for a summons requiring witness to appear.

A proposed Order allowing petitioner to proceed in Forma Pauperis.

A proposed Summons for the witness.

A proposed Order to Show Cause.

• Make sure you send the out-of-state documents to the appropriate courts with enough time for the summons to be served and the necessary hearings to be set. The time frame is six weeks, more or less.
• Make sure all three Coos County documents are sent court-certified to the corresponding state.
• Obviously, you’re going to have to custom-tailor the affidavit to fit the facts of your case to explain why this witness is important. The affidavits that were included in the forms give some indication of what the court is looking for. As they are on an ex parte basis, you don’t need to worry about disclosure of the theory of defense.

There are separate folders for documents only and for live witnesses. One of the big issues with live witnesses is arranging travel vouchers w/State Court Administrator, who will actually arrange for airfare/motel/meals etc. The process is that we submit an ex parte affidavit to the SCA, who conducts an administrative review/approval process. This is another big consumer of time — it cannot wait until the last minute. (We still include the costs in the affidavit b/c the outmoded statute requires we do so.)

You do have to put numbers in the affidavit, though, based on stautory figures. At present, those are 8 cents per mile for mileage, which you can get via www.yahoo.com and the map function, and the $5 per day daily appearance fee. Check with the clerk’s office before filing to see if there have been any changed. The meal # of $21/day is based on State per diem, and the $32/night figure is based on the good old Myrtle Lane Motel in Coquille.

• The Sheriff’s Office in the corresponding state can be more or less cooperative. In particular, despite our appointed status, and the likely signing of an Order allowing proceeding in forma pauperis, the corresponding state may still charge a service fee. If they insist on the payment despite your articulate and persuasive logic that it makes no sense, then you’ll need to decide whether this worth the cost. If so, then get approval and send the check.
• Given difficulties such as (d), or simply determining which court in some state you’ve never heard of to file the paperwork (e.g., the Superior Court or District Court in Massachusets), or which county the witness is located in, or making sure that the local clerk doesn’t just submarine the whole process by giving it a low priority, consider looking up local counsel in the NACDL directory for assistance. We were fortunate enough to find someone willing to do so on a pro bono basis, and maybe with enough creative whining and appeal to bleeding-heart sentiment, you might also succeed. Consider, though, a motion for appointment of someone so they can at least get some compensation for their time; it makes a lot more sense than trying to do it yourself across country.

Another alternative along these lines is to have the investigator find an “operative” to assist and then do some sub-billing on the case. Would need to work out the details on this but it’s still better than trying to do this all on your own and prepare for trial at the same time.

• Also, be aware that the judge in the corresponding state can refuse to enter an order for the return of the witness if the judge finds “undue hardship.” That is defined nowhere and it is not clear how one raises an objection to such a finding, but the bottom line is that you could be going through all this for nothing.