I Got a Subpoena; Am I Too Far Away? Do I Get Witness Fees?
So you were served with a subpoena or subpoena duces tecum (SDT) to appear in court in a criminal case? You live in California, but you are 151 miles from the courthouse. Is the subpoena or SDT enforceable? The answer is no. Under Penal Code § 1330, an ordinary subpoena or SDT is sufficient if the distance from a witness’ residence to the place of trial is 150 miles or less.The Reader’s Digest Version: A subpoena for a witness to appear in court more than 150 miles from the witness’ residence is defective unless ordered by the judge in the case, as long as the witness’ home is within California. To read more about subpoenas issued for witnesses outside California, read the article below.
If the distance is 150 miles or more, but still within California, the attorney seeking a witness’ presence in court must present an affidavit or declaration under California Code of Civil Procedure (C.C.P.) § 2015.5 to a judge explaining why the witness’ testimony or evidence is material and his or her attendance is necessary in court. Penal Code § 1330 (the 150 mile limit does not apply in civil cases. C.C.P. § 1989).
If the judge then endorses the subpoena or SDT, based on the affidavit or declaration, with an order for the witness’ appearance, then the witness’ presence is ordered to appear in court despite the distance being more than 150 miles, just as long as the witness’ residence is within California.
In contrast, if one is a witness in California and the witness receives a subpoena to testify out-of-state, the party outside California should set a hearing under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases. The hearing is supposed to be set in the county where the witness resides in California. A judge in California then decides if the subpoena is enforceable and will issue. The same judge can also decide to take the witness into custody (Penal Code § 1334.3), so it may be prudent to retain experienced criminal defense counsel to represent you at such a hearing. The judge can also order the party outside California to pay the witness’ “witness fees” and additional reimbursement for other expenses associated with attending court out-of-state. Penal Code §§ 1334.2 and 1334.3.
Such witness fees are governed by Penal Code § 1329. Under this code section, the judge has the discretion to grant $12 per day for each day the witness attends court, as well a reasonable sum for necessary expenses (mileage most commonly), and, if the witness is employed, up to $18 per day rather than $12 per day if the employer does not pay the employee’s wages for time lost because of the employee’s appearance in court.
Such fees are paid for by the county, not the party. They are charged against the same fund as jurors’ fees in criminal cases. Government Code § 68098; C.C.P. § 215 (jurors’ fees).
Be careful in requesting additional expenses. The judge, in a criminal case, does not have the power to order a party to pay additional compensation to a witness as a sanction for the party’s abuse of process. Fabricant v. Superior Court (1980) 104 Cal.App.3d 905, 163 Cal.Rptr. 894. In other words, it is a waste of time and a good way to lose credibility with the judge to ask the judge to order extra compensation because you feel you are being dragged into court to hassle or annoy you.
It is notable, lastly, that when the judge does not order either the prosecution or the defense to pay the reasonable expenses of a witness, it seems permissible for the prosecution or the defense attorney to pay the reasonable costs of travel and lodging. However, an unreasonable expenditure of money to a witness obviously subjects the witness to impeachment under Evidence Code § 780(f) as being bribed or unduly influenced by the monetary compensation paid to him or her.
For more information about appearing in court, please click on the following articles: