Extradition of Witnesses
Being called to testify in a criminal case is often an extremely frustrating experience. The prosecutor or criminal defense attorney might seek your testimony for different reasons. Depositions, trials, or hearings are often rescheduled at the last minute.
Cases can be continued again and again without any discussion of the inconvenience to the witnesses involved. The inconvenience can be overwhelming for any witness, especially when the witness is required to testify for a criminal trial in another state.
This article explains when you can be forced to go to another state to testify in a criminal or civil case.
Attorney on the Extradition of Witnesses in Florida
Contact an attorney at the Sammis Law Firm to discuss any order to testify as a witness in a criminal trial, grand jury proceeding, or trial.
Our attorneys are experienced in protecting a witness facing extradition to or from the State of Florida.
We represent witnesses facing extradition under Florida law to testify in a criminal case throughout the Tampa Bay area, including Tampa, Hillsborough County, Bartow, Polk County, Dade City, New Port Richey, Pasco County, Bradenton, Manatee County, Brooksville, Hernando County, and Sarasota County, Florida.
If you are being called to testify in a criminal case in a different state, contact an experienced criminal defense attorney to determine your rights during the process.
The attorneys at Sammis Law Firm in Tampa, FL, can help you decide how to ensure your voice is heard and your rights are protected.
Call 813-250-0500.
Out-of-State Witness for Criminal Case in Florida
Florida law provides for a mechanism to obtain a court order from another state that compels a witness who resides in that other state to travel to Florida to testify pursuant to a summons, subpoena, order, or notice to appear in any Florida criminal trial, investigation, or grand jury proceeding in a criminal case.
If a witness is incarcerated (in jail or prison) in Florida but needed as a witness for a case pending in a different county in Florida, the prosecutor will often file a “Writ of Habeas Corpus Ad Testificandum.”
The court order is signed by the judge and issued over the seal of the clerk of the court. It commands the custodian of a prisoner to bring the prisoner to court to testify as a witness during a deposition, hearing, or trial.
Florida Witness for Criminal Case in Another State
Florida law also provides a mechanism to compel a witness who resides in Florida to travel to another State to testify pursuant to a summons, subpoena, order, or notice to appear in any criminal trial, investigation, or grand jury proceeding in another state’s criminal case.
Our office is often contacted by attorneys out of state who want to compel a witness located in Florida to attend a hearing or trial in a courtroom out of state.
We have also been retained by witnesses who do not wish to travel to another state to testify.
Being Forced to Testify in a Criminal Case
Florida law allows a witness to be taken into custody and compelled to testify in another state. Defenses exist when the testimony is not material or necessary, when compelling such testimony would create an undue hardship or when specific constitutional or procedural rules are not strictly followed.
Suppose you are facing extradition as a witness in a criminal case under Florida law. In that case, you are entitled to be represented by an attorney at any such hearing to protect your constitutional rights.
You are also entitled to be represented by an attorney to ensure that all requirements are reasonable under the circumstances so that the court order does not create an undue hardship for you.
Avoiding “Undue Hardship” as a Witness in a Criminal Case
To avoid any undue hardship, the Court may order that the party requesting your attendance must pay for your travel expenses, including a plane ticket for you (and possibly your minor children if you are not otherwise able to secure child care while you are compelled to travel), cab fare to and from the airport, a hotel room, food allowance, as well as any other witness fee required by statute or may be reasonable under the circumstances.
The court can also impose certain time limitations concerning when you must leave and when you are free to return to your home state.
We created this article to discuss the process for the extradition of witnesses to testify in criminal cases in Florida.
Specific Florida Statutory Provisions Dealing with Extradition of a Witness
Florida State Statute Section 942.02 deals with summoning a witness in Florida to testify in another state and provides:
- If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in Florida 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 Florida is a material witness in such prosecution or grand jury investigation, and that that person’s presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such 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. The witness shall at all times be entitled to counsel.
- If at a hearing, the 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 the witness protection from arrest and the service of civil and criminal process, the judge shall issue a summons, 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 summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.
- If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure her or his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before her or him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken in custody and delivered to an officer of the requesting state.
- If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and $5 for each day that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in Florida.
Florida Statute Section 942.03 provides for a mechanism for a witness from another state to be summoned to testify in Florida and provides:
- If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions 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 Florida, or in a grand jury investigation which has commenced or is about to commence, a judge of such 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. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of Florida to assure his or her attendance in Florida. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
- If the witness is summoned to attend and testify in Florida, the witness shall be tendered the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and $5 for each day that he or she is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within Florida a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into Florida, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in Florida.
Florida Statute Section 942.04 provides for certain exemptions from arrest and process of service under Florida law and provides:
- If a person comes into Florida in obedience to a summons directing him or her to attend and testify in Florida, the person shall not while in Florida pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his or her entrance into Florida under the summons.
- If a person passes through Florida while going to another state in obedience to a summons to attend and testify in that state, or while returning therefrom, the person shall not while so passing through Florida be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his or her entrance into Florida under the summons.
Florida Statute Section 942.05 sets out uniformity of interpretation and provides:
This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it, and shall be only applicable to such state as shall enact reciprocal powers to this state relative to the matter of securing the attendance of witnesses as herein provided.
We represent clients in extradition cases throughout Tampa and Hillsborough County, FL, and the surrounding areas, including St. Petersburg or Clearwater in Pinellas County, New Port Richey or Dade City in Pasco County, Bartow or Lakeland in Polk County, Bradenton in Manatee County or Brooksville in Hernando County.
Sample Petition and Application for Extradition of Witness to Testify in Out-of-State Proceedings
- This petition is based on the annexed certified copy of a [insert name of the underlying document, i.e., Certificate and Findings in the matter to Compel Attendance of Out of State Witness issued by the Honorable _____ of the Circuit Court of ___ County on [date]] (Attached as Exhibit “A”), which certified under the seal that there is a criminal prosecution pending in such court, that a person being within this state is a material witness in such prosecution or grand jury investigation, and that that person’s presence will be required for a specified number of days.
- By its Certificate, the above-named Court found that the witness is a necessary and material witness in such prosecution and that the presence of the witness will be required for not more than one week in the State of [insert other state].
- The Court’s Certificate also recognized that the laws of the State of [other state] will give the witness protection from arrest or service of process, civil or criminal, in connection with matters that arose before his entrance into [name of underlying state] pursuant to this Summons.
- The Defendants in the [other state] cases have purchased a round-trip plane ticket, hotel accommodations, and transportation to and from the [name of the courthouse for the underlying case]. Therefore, an order requiring [witness’s] attendance in [other state] will not cause undue hardship to this witness if he is to be compelled to attend and testify in the pending criminal trial of the Defendant.
- [other state] is a state which by its laws has made provision for commanding persons within that state to attend and testify in this state.
- As certified in Exhibit “A,” [witness] is a material witness residing in [county where this motion is filed] County, FL, at the following address: ________.
- Undersigned counsel is requesting that this Court, pursuant to F.S. 942.02, fix a time and place for a hearing and make an order directing the witness to appear at a time and place certain for the hearing.
- At the hearing, it will be shown 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 criminal trial in the other state, and that the laws of the state in which the prosecution is pending will give to the witness protection from arrest and the service of civil and criminal process.
- Pursuant to Florida Statute Section 942.02, in any such hearing, the certificate shall be prima facie evidence of all the facts stated therein.
- The undersigned attorney is requesting that this Court issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the criminal case is pending at a time and place specified in the summons.
This article was last updated on Tuesday, April 11, 2023.
