Can a Witness Be Compelled to Testify In a Foreign State ?
The Uniform Act to Secure the Attendance of Witnesses from Without the State O.C.G.A. 24-10-92. Act provides in pertinent part:
(a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court . . . that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in such . . . grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which the person is found, such judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing. the witness shall at all times be entitled to counsel.
(b) If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in . . . the other state, and the laws of the state in which the . . . grand jury investigation has commenced or is about to commence, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where . . . a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing the certificate shall be prima-facie evidence of all the facts stated therein.
The statute also requires that the witness receive compensation for travel to the foreign state.
Pursuant to Maryland's reciprocal act, Md. Courts Code Ann. 9-302.
In the context of grand jury proceedings, we find no Georgia case prescribing the evidentiary sufficiency of the requesting state's certificate under O.C.G.A. 24-10-92 (a).
We note, however, that in affirming a Georgia court's refusal to certify an out-of- state witness as material in a trial in Georgia, this Court has held that the statute requires the presentation of enough facts to enable both the court in the demanding state and the court in the state to which the requisition is directed to determine whether the witness should be compelled to travel to a trial in a foreign jurisdiction. Chesser v. State, 168 Ga. App. 195, 196 (308 S.E.2d 589); Mafnas v. State, 149 Ga. App. 286, 287 (254 S.E.2d 409).
In deciding what facts are enough to certify a person as a material witness in a grand jury proceeding, we derive guidance from our sister state of Florida, which has construed its similar statute (Fla. Stat. 942.02 (2) (1997)) husly:
Since the certificate is in the words of the statute, we think that it is sufficient. It is usual for certificates of this type to follow the statute; (citations omitted) and inasmuch as the certificate is issued by a judge of the requesting state who has satisfied himself as to the sufficiency of the evidence or facts to establish the necessary conditions for the making of the certificate, it is not required that he give the basis of his decision in order to have a certificate that is prima facie good.
Skakel v. State of Fla., 738 So. 2d 468, 471 (Fla. App.), quoting Epstein v. People of the State of N. Y., 157 So. 2d 705, 707 (Fla. App.). Accord In re State of Cal. for the County of Los Angeles &c., 57 Md. App. 804 (471 A.2d 1141), cert. denied, Rees v. County of Los Angeles, 467 U.S. 1205 (104 S. Ct. 2388, 81 L. Ed. 2d 346); In re Rhode Island Grand Jury Subpoena, 414 Mass. 104 (605 N.E.2d 840); Ex Parte Armes, 582 S.W.2d 434 (Tex. Crim. App); In the Matter of Failla, 89 A.D.2d 923 (454 N.Y.S.2d 25).
In Illinois, the conclusion alone of a petitioning court that the witness sought is material and necessary is not entitled to prima facie evidentiary value. New York v. Wagner, 79 Ill. App. 3d 369 (398 N.E.2d 372, 34 Ill. Dec. 697). Similarly, in Vermont, the local judge must make independent findings on materiality, necessity, and undue hardship. In re Stoddard, 144 Vt. 6 (470 A.2d 1185).
Further, in Epstein, supra, and Skakel, supra, the certificate of the requesting court had appended to it an affidavit of an assistant district attorney which detailed the reasons why the witness should be required to appear before a grand jury in the foreign state.
"'It is an established rule of evidence in this State that, in a judicial trial in a court of law, where evidence is finally adjudicated and final judgments are rendered, ex parte affidavits are inadmissible, and their admission in such a case over proper objection constitutes reversible error.' (Cits.)" Lanthripp v. Lang, 103 Ga. App. 602, 605 (120 S.E.2d 59) (1961).
However, the instant appeal is not "such a case." Here, we are concerned with proceedings before a grand jury, not the judicial trial of a case in a court of law. In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 351 (3) (333 S.E.2d 389).
The majority of states which have considered this issue have ruled that the power to order a witness to travel to a foreign state for the purpose of testifying at a grand jury hearing implicitly encompasses the power to order the witness to produce relevant documents. Ex Parte Simmons, 668 So. 2d 901; In re Bick, 82 Misc. 2d 1043 (372 N.Y.S.2d 447); In re Saperstein, 30 N.J. Super. 373 (104 A.2d 842), cert. denied, 348 U.S. 874 (75 S. Ct. 110, 99 L. Ed. 688); State v. Harman, 165 W. Va. 494 (270 S.E.2d 146); Application of Grand Jury &c. of New York, 8 Mass. App. Ct. 760 (397 N.E.2d 686).