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How to Secure the Attendance of Witnesses at Trial

By Paul Wright

Most prisoner civil rights claims are filed by prisoner litigants who are representing themselves because they either cannot afford or cannot obtain counsel to do so. They can rarely afford to pay the relevant filing fees normally required to begin litigation and thus proceed in forma pauperis with the court waiving the filing fees. This is permitted under 28 U.S.C. § 1915, known as the in forma pauperis statute. A problem that arises is when the prisoner litigant survives summary judgement and is preparing for trial. In order to secure the attendance of witnesses, especially hostile witnesses such as DOC employees, it is necessary to serve them with a subpoena, witness and mileage fees. Which most prisoners cannot afford.

I recently faced this situation in Wright v. Blodgett , a civil rights suit I have been litigating since 1991. During settlement negotiations the attorney general told me there was no point in going to trial as I would be unable to present any witnesses because I could not afford to subpoena them. The practice of the Washington DOC is not to permit it's employees to appear as witnesses for prisoners unless they have been subpoenaed, knowing few if any prisoners can afford to pay such fees.

The case law in the ninth circuit as well as every other circuit that has considered this issue is that under 28 U.S.C. § 1915 the court cannot waive or pay the subpoena fee's required to compel the attendance of witnesses. See: Dixon v. Ylst , 990 F.2d 478 (9th Cir. 1993); Tedder v. Odel , 890 F.2d 210 (9th Cir. 1989); Boring v. Kozakiewskicz , 833 F.2d 468 (3rd Cir. 1987); McNeil v. Lowney , 831 F.2d 1368 (7th Cir. 1987); Cookish v. Cunningham , 787 F.2d 1 (1st Cir. 1986); U.S. Marshall's Service v. Means , 741 F.2d 1053 (8th Cir. 1984); Johnson v. Hubbard , 698 F.2d 286 (6th Cir. 1983) and Malik v. Lavalley , 994 F.2d 90 (2nd Cir. 1993).

The dissent in Johnson points out the obvious: that it makes little sense to allow indigents to file suit if they will be unable to present witnesses to the court or jury at the trial phase of the proceedings. As can be seen from these cases, it is a common problem for prisoners.

Federal Rule of Evidence 614(a) allows the court to call witnesses as its own. Rule 706(b) allows the court to direct the compensation by the parties of expert witnesses called by the court.

"While section 1915 does not authorize the district court's order, we conclude upon careful analysis that Federal Rules of Evidence 614(a) and 706(b), read in light of 28 U.S.C. § 1920 and 2412 (1982), and Federal Rule of Civil Procedure 54(d), confer upon the district court discretionary power to call Yellow Thunder Camp's lay and expert witnesses as the courts own witnesses and to order the government as a party to this case to advance their fee's and expenses, such advance payment to be later taxed as costs." Means , at 1057.

"We believe that a court may order parties to advance payment of fees and expenses for lay witnesses called by the court under federal Rule of Evidence 614(a)." "The court's power to call witnesses is crucial to prevent impairment of the fact finding process Thus, to allow the court to call witnesses without providing some mechanism for payment of their fees and expenses would be meaningless." Id ., at 1058.

Relying on Means I filed a motion with the court requesting that the court call eight people as its own witnesses to testify in the action and to order the attorney general's office to advance the relevant witness and mileage fees. The attorney general responded that I wasn't completely indigent and that rather than save my money to pay for witness and subpoena fees I had bought groceries, "to include pizza and donuts." They also argued that the state was not a party to the suit as I was only suing one remaining defendant in his individual capacity and they have not yet presented their case at trial.

Magistrate Judge Hovis disagreed. He noted that while the state is not a party it is representing Mr. Blodgett and it has considerably greater resources than I do. Moreover, Mr. Blodgett has not nor will he be forced to pay the costs of litigation out of his pocket. The court noted that even prisoners have expenses. "The deciding factor for this court is that it has expended an enormous amount of time and effort with respect to the parties' dispositive motions and with respect to settlement negotiations. The court's efforts would be wasted if plaintiff were unable to call necessary witnesses at trial. Therefore, the court finds there are compelling circumstances warranting that defendant advance the fees of certain witnesses. If the defendant prevails at trial, the fees will be taxed as costs against the plaintiff." The defendants were ordered to send the court clerk the relevant amount of money for subpoena and witness fees.

I am not aware of any other court rulings which permitted prisoners to subpoena witnesses at the defendant's expense where it was required. Magistrate Hovis' ruling is unpublished and cannot be cited as authority. Litigants facing this problem should file motions similar to the above and see if the court will grant it. A trial where the plaintiff, who has the burden of proof, cannot afford to present witnesses is hardly a fair contest.

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