CHAPTER 5. UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM OUTSIDE THE STATE IN CRIMINAL PROCEEDINGS
IC 35-37-5
Chapter 5. Uniform Act to Secure the Attendance of Witnesses
From Outside the State in Criminal Proceedings
IC 35-37-5-1
Definitions
Sec. 1. As used in this chapter:
"State" includes any territory of the United States and the District
of Columbia.
"Subpoena" includes a summons in any state where a summons is
used in lieu of a subpoena.
"Witness" shall include a person whose testimony is desired in
any proceeding or investigation by a grand jury or in a criminal
action, prosecution, or proceeding.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-2
Subpoena; issuance; service; proof of service; fees; contempt of
court
Sec. 2. (a) At the request of the state or a defendant, subpoenas for
attendance at a hearing or trial shall be issued by the clerk of the
court of the county in which the hearing or trial is to be held. A
subpoena may be served at any place within the state. When
permitted by the laws of the United States, this or another state, or
foreign country, the court upon proper application and cause shown
may authorize the service of a subpoena outside the state in
accordance with such law.
(b) Every subpoena shall:
(1) be issued by the clerk under the seal of the court;
(2) state the name of the court and the title of the action;
(3) command each person to whom it is directed to attend and
give testimony at a specified time and place; and
(4) be signed by the clerk.
The clerk shall issue a subpoena, or a subpoena for the production of
documentary evidence, signed and sealed but otherwise in blank, to
a party requesting it or his attorney, who shall fill it in before service.
(c) A subpoena may also command the person to whom it is
directed to produce the books, papers, documents, or tangible things
designated therein. The court, upon motion made at or before the
time specified in the subpoena for compliance, may:
(1) quash or modify the subpoena if it is unreasonable and
oppressive; or
(2) condition denial of the motion upon the advancement by the
person in whose behalf the subpoena is issued of the reasonable
costs of producing the books, papers, documents, or tangible
things.
(d) A subpoena may be served by any person. Service of a
subpoena upon a person shall be made in the same manner as
provided in the Indiana Rules of Trial Procedure.
(e) When a subpoena is served by the sheriff or his deputy, his
return shall be proof of service. When served by any other person,
the service must be shown by affidavit. No fees or costs for the
service of a subpoena shall be collected or charged as costs except
when service is made by the sheriff or his deputy.
(f) Fees need not be first paid or tendered in order to compel the
attendance of witnesses in a criminal proceeding.
(g) Failure by any person without adequate excuse to obey a
subpoena served upon him may be deemed a contempt of:
(1) the court from which the subpoena is issued; or
(2) the court of the county where the witness was required to
appear or act.
When duly subpoenaed, the attendance of all witnesses may be
enforced by attachment.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-3
Subpoena; persons imprisoned or institutionalized within this state
Sec. 3. (a) When the testimony of a person who is imprisoned or
institutionalized within this state is necessary in any criminal
proceeding, the subpoena shall be delivered or mailed to the official
in charge of the institution.
(b) The official in charge of the institution shall bring the witness
named in the subpoena before the court at the time and place
specified and hold him until he is discharged by the court. When so
discharged, the witness shall be returned to the custody of such
official and returned to the institution. The official in charge of the
institution may request from the court issuing the subpoena such
assistance as he deems proper for the safe transportation of the
witness.
(c) When such witness is in attendance upon any court, he may be
placed, for safe-keeping, in the jail of the county or any other
suitable place pursuant to an order of the court. The county in which
the proceeding is pending shall pay the actual and necessary expense
of producing, keeping, and returning such witness.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-4
Summoning witness in this state to testify in another state
Sec. 4. (a) If a judge of a court of record in any state which has
made provision for the commanding of persons within that state to
attend and testify in this state certifies under the seal of the court
that:
(1) there is a criminal prosecution pending in the court, or that
a grand jury investigation has commenced or is about to
commence;
(2) a person being within this state is a material witness in the
prosecution or grand jury investigation; and
(3) the person's presence will be required for a specified number
of days;
upon presentation of the certificate to a judge of a court of record
with jurisdiction to try felony cases in the county in which the person
is located, the 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.
(b) If at the hearing the judge determines that:
(1) the witness is material and necessary;
(2) 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
(3) 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 the person protection from arrest, and
the service of civil and criminal process;
the judge 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 any hearing the certificate is prima facie evidence
of all the facts stated in it.
(c) If the certificate recommends that the witness be taken into
immediate custody and delivered to an officer of the requesting state
to assure the attendance of the witness in the requesting state, the
judge may, in lieu of notification of the hearing, direct that the
witness be immediately brought before the judge for the hearing. If
the judge is satisfied of the desirability of the custody and delivery,
the judge may, in lieu of issuing a subpoena, order that the witness
be immediately taken into custody and delivered to an officer of the
requesting state. For this determination, the certificate is prima facie
proof of such desirability.
(d) If a witness subpoenaed as provided in this section is paid or
tendered a sum for expenses and fails without good cause to attend
and testify as directed in the subpoena, the witness shall be punished
in the manner provided for the punishment of any witness who
disobeys a subpoena issued from a court of record in this state.
(e) The amount of the payment for expenses under subsection (d)
of this section and section 4(b) of this chapter is set out in
IC 33-37-10-2.
As added by P.L.311-1983, SEC.2. Amended by P.L.171-1984,
SEC.78; P.L.192-1986, SEC.38; P.L.305-1987, SEC.33;
P.L.98-2004, SEC.148.
IC 35-37-5-5
Witness from another state summoned to testify in this state
Sec. 5. (a) If a person in any state that has made provision for
commanding persons within its borders to attend and testify in
criminal prosecutions in this state or grand jury investigations
commenced or about to commence in this state is a material witness
in a prosecution pending in a court of record in this state or in a
grand jury investigation which has commenced or is about to
commence in this state, a judge of the court may issue a certificate
under the seal of the court stating these facts and specifying the
number of days the witness will be required. This certificate shall be
presented to a judge of a court of record in the county of the state in
which the witness is found.
(b) If the witness is summoned to attend and testify in this state,
the witness shall be tendered a sum for expenses equal to the amount
provided under IC 33-37-10-2. The fees shall be a proper charge
upon the county in which the criminal prosecution or grand jury
investigation is pending.
(c) A witness who has appeared in accordance with the provisions
of the subpoena shall not be required to remain within this state for
a longer period of time than the period mentioned in the certificate,
unless otherwise ordered by the court.
(d) If the witness fails without good cause to attend and testify as
directed in the subpoena, the witness shall be punished in the manner
provided for the punishment of any witness who disobeys a subpoena
issued from a court of record in this state.
As added by P.L.311-1983, SEC.2. Amended by P.L.171-1984,
SEC.79; P.L.192-1986, SEC.39; P.L.305-1987, SEC.34;
P.L.98-2004, SEC.149.
IC 35-37-5-6
Summoning prisoners in this state to testify in another state;
prisoner from another state summoned to testify in this state
Sec. 6. (a) If a judge of a court of record in any other state, which
by its laws has made provision for commanding a prisoner within
that state to attend and testify in this state, certifies under the seal of
the court that:
(1) there is a criminal prosecution pending in such court or that
a grand jury investigation has commenced;
(2) a person confined by the department of correction (other
than a person awaiting execution of a sentence of death) is a
material witness in such prosecution or investigation; and
(3) his presence is required for a specified number of days;
a judge of a court with jurisdiction to try felony cases in the county
where the person is confined, after notice to the attorney general,
shall fix a time and place for a hearing and shall order the person
having custody of the prisoner to produce him at the hearing.
(b) If at such hearing the judge determines that the prisoner is a
material and necessary witness in the requesting state, the judge shall
issue an order directing that the prisoner attend the court where the
prosecution or investigation is pending, upon such terms and
conditions as the judge prescribes, including:
(1) provision for the return of the prisoner at the conclusion of
his testimony;
(2) proper safeguards on his custody; and
(3) proper financial reimbursement or other payment by the
demanding jurisdiction for all expenses incurred in the
production and return of the prisoner.
(c) The attorney general is authorized to enter into agreements
with authorities of the demanding jurisdiction to insure proper
compliance with the order of the court.
(d) If:
(1) a criminal action is pending in a court of record of this state
by reason of the filing of an indictment or affidavit or by reason
of the commencement of a grand jury proceeding or
investigation;
(2) there is reasonable cause to believe that a person confined
in a correctional institution or prison of another state (other than
a person awaiting execution of a sentence of death or one
confined as mentally ill) possesses information material to such
criminal action;
(3) the attendance of such person as a witness in such action is
desired by a party; and
(4) the state in which such person is confined possesses a
statute equivalent to this section;
a judge of the court in which such action is pending may issue a
certificate certifying all such facts and that the attendance of such
person as a witness in such court is required for a specified number
of days. Such a certificate may be issued upon application of either
the state or defendant demonstrating all the facts specified in this
section.
(e) Upon issuing such a certificate, the court may deliver it to a
court of such other state which, pursuant to the laws thereof, is
authorized to undertake legal action for the delivery of such prisoners
to this state as witnesses.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-7
Federal prisoner summoned to testify in this state
Sec. 7. When:
(1) a criminal action is pending in a court of record of this state
by reason of an indictment or affidavit, or by reason of the
commencement of a grand jury proceeding or investigation;
(2) there is reasonable cause to believe that a person confined
in a federal prison or other federal custody, either within or
outside this state, possesses information material to such
criminal action; and
(3) the attendance of such person as a witness in such action is
desired by a party;
the court may issue a certificate, known as a writ of habeas corpus ad
testificandum, addressed to the attorney general of the United States,
certifying all such facts and requesting the attorney general of the
United States to cause the attendance of such person as a witness in
such court for a specified number of days. Such a certificate may be
issued upon application of either the state or a defendant
demonstrating all facts specified in subdivision (1). Upon issuing
such a certificate, the court may deliver it, or cause or authorize it to
be delivered, to the attorney general of the United States or to his
representative authorized to entertain the request.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-8
Exemption from arrest or service of process
Sec. 8. If a person comes into this state in obedience to a
subpoena directing him to attend and testify in a criminal prosecution
in this or any other state, he shall not while in this state pursuant to
such subpoena be subject to arrest or the service of process, civil, or
criminal, in connection with matters which arose before his entrance
into this state under subpoena.
As added by P.L.311-1983, SEC.2.
IC 35-37-5-9
Uniformity of construction
Sec. 9. This chapter shall be construed so as to effectuate its
general purpose which is to make uniform the law of the states that
enact it.
As added by P.L.311-1983, SEC.2.