How do you subpoena a witness who resides in New York to testify in an out-of-state proceeding?
The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings was completed in 1936. The act provides states with statutory authority to secure the attendance of a witness from without the state in which the criminal proceeding or grand jury proceeding is pending. In New York, the act is codified in Article 640 of the Criminal Procedure Law. Specifically, CPL 640.10(2) states, in pertinent part: If a judge of a court in any state which by its laws has made provision for commanding persons within that state to attend and testify in [New York] certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within [New York] is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to a justice of the supreme court or a county judge in the county in which such person is, such justice or 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. If at such hearing the justice or 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 prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or 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 subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the subpoena. . . . In layman's terms, if an out-of-state attorney wishes to subpoena a witness who resides in New York to testify in an out-of-state criminal proceeding, said attorney must persuade a judge in the subpoenaing jurisdiction to certify, under seal, that (1) there is a criminal prosecution pending in that jurisdiction's court, or that a grand jury investigation has commenced or is about to commence, (2) that said witness is a material witness in any such proceeding, and (3) that the witness's presence will be needed for X amount of days. Upon clearing that step, the out-of-state attorney (presuming they are not admitted to practice in New York) will need to forward the original certified papers to an attorney licensed in New York in order to present "such certificate to a justice of the supreme court or a county judge in the county in which such person is." That to say, if the witness resides in Manhattan, the certifying papers must be submitted before a supreme court justice seated in New York County. Included with the certifying papers from the subpoenaing jurisdiction must be an order to show cause submitted by the attorney licensed to practice in New York. To the extent that the order to show cause is signed by a qualifying justice, the order along with the certifying papers must then be personally served upon the witness.Upon service, the witness may either make arrangements with the out-of-state attorney to travel to the out-of-state criminal proceeding (the out-of-state attorney should be prepared to pay for the witness's travel and lodging costs) , or, the witness may move to quash the subpoena on the return date set forth in the order to show cause. Generally, a motion to quash will be founded upon the hardship provision set forth in CPL 640.10(2). To that end, the Court of Appeals has illustratively interpreted what constitutes a hardship in the cases of Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 N.Y.2d 521 (1993), and Matter of Holmes, 22 N.Y.3d 300 (2021).In sum, subpoenaing a witness who resides in New York to testify in an out-of-state criminal proceeding is a straightforward process guided by Article 640 of New York's Criminal Procedure Law. To the extent that legal assistance is needed in subpoenaing a witness under this article, please do not hesitate to contact The Law Office of Phillip Hamilton, PLLC @www.philliphamiltonlaw.com.