Securing the Out-of-State Witness

Obtaining a subpoena and serving it on an in-state witness is a relatively simple process. The Clerk of Courts or Department of Court Records will provide you a subpoena form--if you are appointed counsel then there will be no charge. You then complete the form. The subpoena then must be approved and you must ensure service on the witness. However, this process does not apply when the witness is out-of-state.

When the out-of-state witness is friendly and willing to cooperate, you likely would not need a subpoena. But what do you do when the witness does not want to appear? Neither the PCRA statute nor the PCRA rules of criminal procedure provide any guidance. Pennsylvania has adopted statutory law, as have most if not all other States, governing subpoenaing a witness in a criminal trial or grand jury proceeding. The statute in Pennsylvania, 42 Pa. C.S. Section 5964, requires the trial court to issue an order certifying that the out-of-state witness is a material witness. The law also prohibits the out-of-state witness from being arrested or served other process upon appearing in Pennsylvania.

Once the material witness order is issued, counsel, if you have not done so already, must contact an attorney from the State in which the out-of-state witness resides. That attorney must then present a motion to compel the out-of-state witness to appear before a county court where the witness resides. That court must then schedule a hearing and the out-of-state attorney ensure that the witness is served notice of that hearing. After the witness appears in their home state county court, that court then can issue a summons/subpoena agreeing that the witness is a necessary material witness, that the witness won't suffer undue hardship by having to appear, and that the other State will protect the witness from arrest and service of civil or criminal process.

However, in Pennsylvania, the PCRA process though expressly governed by criminal procedural rules, has been held to be civil in nature. Accordingly, a question arises as to whether Pennsylvania's statute for securing the attendance of a witness from without a state in criminal proceedings applies. One Pennsylvania appellate panel, in an unpublished non-binding decision, has opined in dicta that the law might not apply. Commonwealth v. S.W., 2014 WL 10786932. However, in Commonwealth v. Birdsong, 24 A.3d 319, 349 (Pa. 2011), the Supreme Court appeared to implicitly conclude that the law does apply, but rejected the defendant's claim that the PCRA court had erred in declining to certify material witnesses where the PCRA court had determined the testimony was not material to the PCRA hearing.

If the statute does not apply, then PCRA counsel would actually have to pursue obtaining witness testimony via civil law and discovery procedures. This, of course, would be inconsistent with the limited rules governing discovery in PCRA cases. It has been my practice to follow the criminal out-of-state procedure and PCRA courts have in those limited cases been receptive to that procedure. If you are a Pennsylvania attorney or an out-of-state attorney in need of assistance, feel free to contact me.