Crime does not recognize boundaries. It has become more common in state criminal cases to need to obtain witnesses or exhibits out of state. Travel and contact across state lines is now the norm. Additionally, criminal jurisdiction has been expanded. Some crimes now can be prosecuted in Tennessee when all the defendant’s conduct took place out of state.1 Our state rule on the issuance of subpoenas in criminal cases only allows service within Tennessee.2 However, prosecutors and defense counsel have a way to get the evidence that they need even from witnesses out-of-state.

The purpose of this column is to encourage the use of the provisions for obtaining out-of-state witnesses. When I’ve surveyed attorneys about whether they have ever subpoenaed an out-of-state witness, it is amazing how few actually have done it. It is complicated, but with a little planning, there are clear, enforceable procedures to get witnesses into court in Tennessee and to safeguard the right to compel the attendance of witnesses. The process may seem intimidating because of the number of steps, but it can make all the difference in a case.

The Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings has been around since the 1930s.3 The statute includes provisions for compulsory attendance of out-of-state witnesses at criminal proceedings in Tennessee courts on a showing of materiality.

Planning

Even though the procedure is set out clearly by statute, complying with the requirements does take some time and effort. Therefore, counsel should plan early to determine which witnesses or evidence should be subject to a request under the Uniform Act. You may not have time to get everything accomplished if you wait until just before trial. You also may not have control over how long the process takes in the other state, especially in a smaller jurisdiction where court is not always in session.

Reasons to Use the Uniform Act Even If You Think the Witness Will Appear Voluntarily

Some witnesses will agree to appear. Relying on a promise to come may be appropriate in some cases, but use caution. A friendly witness may appear with no issues. But if a problem arises with the witness getting to court, having a valid subpoena in place will be much safer—especially if the witness refuses to come and an argument needs to be made that the witness is unavailable. A valid subpoena may also allow the payment of travel expenses and can foreclose any argument that the witness is being provided improper compensation.4

Maybe more importantly, courts will not find witnesses unavailable unless the proper procedure under the Uniform Act has been used. Hearsay cannot be admitted just because the witness is in another state. Because of the Uniform Act, an out-of-state witness is not unavailable.5 The Tennessee Supreme Court has upheld a finding that an out-of-state witness was unavailable, but only because the State used the Uniform Act and the witness was found by the Florida court to be evading service.6 If the State had not made the effort to secure the witness under the act, the result probably would have been different. In State v. Brown, the Court of Criminal Appeals affirmed the dismissal of a criminal case because the prosecutors had failed to use the Uniform Act to secure the presence of the out-of-state victim.7 The witness wasn’t unavailable, so prior testimony could not be used. In cases where a witness is served and fails to appear, a finding of unavailability is much more likely.8

Other cases hold that a party is not entitled to a missing witness instruction where the party hasn’t sought to use the Uniform Act to secure that witness.9 So there are a variety of reasons to take the time to go through the formal process.

Procedure in the Tennessee Trial Court

After determining who or what you need to subpoena, the next step is to draft a motion for a “certificate” to compel the attendance of out-of-state witnesses.10 The motion needs to establish that the evidence is material. Affidavits can be used to establish materiality. The motion should also set out the corresponding code section in the state that will be presented with the certificate. The motion should state where the witnesses can be found and how many miles they are from the requesting court. Note that the statutory witness fees and mileage may be different in the different states.11 The amounts required to be tendered should be addressed in the state that is being asked to enforce the subpoena. The motion should also identify the court in the other state to which the certificate will be presented.

For a defense request, the federal and state compulsory process provisions and the right to present a defense should be cited in order to make the argument constitutionally based. This citation is important because a trial court also has discretion in the matter. The Tennessee Supreme Court has found that a trial court did not abuse its discretion in refusing to certify the materiality of a California witness who would have testified about a legal issue involving jury selection.12 Other appellate decisions have found no constitutional violation where the defendant offered insufficient evidence of materiality.13 Issuing an out-of-state subpoena is not a perfunctory matter—the proponent should make the strongest possible case for materiality.

Counsel should also submit a proposed “certificate” of summons for a material witness to the Tennessee court. It is important for the order of the court to contain findings supporting the materiality of the evidence because that will have to be presented to the state where the evidence is located.

I recommend that the certificate cite both the Tennessee statute and the other state’s statute authorizing the summons. The date of appearance should be stated, as well as how long the witness is expected to have to stay. The statute provides for mechanisms to take the witness into custody if necessary, though we generally state that we are not asking for the witness to be taken into custody. (It isn’t a bad thing for the witness to know that is an available remedy, however).

For indigent defendants, the court can authorize the witness’s expenses, but the expenses must be approved pursuant to Rule 13, Section 4 of the Rules of the Tennessee Supreme Court.

Process in the Enforcing State

Once you obtain the certificate, you must submit it to the enforcing court in the other state. Sometimes the trickiest part is to find someone in the other state to help you. Prosecutors should call on the district attorney in the county or parish where the witness or evidence is located.

Because the procedures are based on a Uniform Act, the process in most states will be similar. You will need to file a petition for an order and summons that requires the witness to appear in Tennessee at the time specified. The petition should cite and attach the Tennessee Court’s certificate. In most states, you will also need to draft a proposed order, summons and notice to appear. This document should contain the findings of materiality and should also order the witness to appear. Because some states have undue hardship provisions, often this order will allow the witness to appear in the local court to show cause why they should not have to appear. We draft these orders to state that if the witness does not appear and show cause at the specified time, the witness is required to appear as directed in Tennessee. This order can also direct the manner in which counsel will provide the required travel allowance to the witness.

Duces Tecum

These provisions also apply to requests for documents or records. Examples might include phone records held by a phone company in another state or even a state agency’s records. (Prosecutors and law enforcement have additional powers to obtain documents such as stored electronic communications that may be easier and more effective than using an out-of-state subpoena.)14

The subpoena process is the same for documents, although once the certificate is issued in Tennessee it is likely that an agreement could be reached to provide the documents and records with a certification under Tennessee Rule of Evidence 902(11).

Conclusion

Out-of-state subpoenas take some time and planning. But because of the risks involved in getting witnesses to appear by agreement, it is worth it to consider using the process that all 50 states have in place to secure the right to compulsory process.15 |||

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WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board

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NOTES

1. Tenn. Code Ann. § 39-11-103 (prosecution of those outside of state); For example, electronic stalking could be committed by someone outside of Tennessee.
2. R.17, T.R.Crim.P.
3. Tenn. Code Ann. §§ 40-17-201 to 40-17-212
4. Walker v. State, No. M2001-01090-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 981, at *33 (Crim. App. Nov. 13, 2002)(where post-conviction petitioner alleged that improper benefits were given to a witness, the claim was rejected when the court found that the only payment was for reimbursement for travel, which is statutorily approved for out-of-state witnesses under the Uniform Act).
5. Barber v. Page, 390 U.S. 719, 724-25 (1968); Brumley v. Wingard, 269 F.3d 629, 641 (6th Cir. 2001).
6. State v. Jones, 568 S.W.3d 101 (Tenn. 2019).
7. State v. Brown, No. W2006-02529-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 23 (Crim. App. Jan. 11, 2008)
8. State v. Nzamubereka, No. E2009-00755-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 31 (Crim. App. Jan. 20, 2011)
9. State v. Owens, No. W2001-01397-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 974, at *44-45 (Crim. App. Nov. 8, 2002)
10. Tenn. Code Ann. § 40-17-207.
11. The Tennessee statute referenced still seems to provide for 4 cents per mile. Tenn. Code Ann. § 24-4-101.
12. State v. Workman, 667 S.W.2d 44, 49 (Tenn. 1984)
13. See State v. Graham, No. W2006-00173-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 671 (Crim. App. Aug. 22, 2007); State v. Cooke, C.C.A. NO. 02C01-9812-CC-00380, W1999-01767-CCA-R3-CD., 1999 Tenn. Crim. App. LEXIS 1322, at *22 (Crim. App. Dec. 28, 1999).
14. See Tenn. Code Ann. § 40-6-109 (disclosure of stored electronic communications).
15. My firm would be happy to provide examples of the documents we have filed to get out-of-state witnesses to Tennessee.