The writ of habeas corpus ad testificandum is used to obtain the in-court testimony of a prisoner. It is obtained by application to the court, supported by affidavit, stating the nature of the suit and the materiality of the testimony, together with general circumstances of the imprisonment which render the writ necessary. The issuance or denial of the writ is within the discretion of the trial court.29
29. 1 V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 576 (1906). See also Saunders v. Saunders, No. 179-81, Parrish, J. (Del. Fam. Jan. 14, 1982) (denying request for writ by prisoner to attend his divorce proceedings on the grounds that (i) the divorce was uncontested, (ii) default without appearance was available, and (iii) the court was willing to proceed by deposition and telephone conference call under oath).
© 2010 David L. Finger