Delaware Trial Handbook § 12:4. OBTAINING WITNESSES FROM OUT OF STATE
The authority of Delaware courts to compel a witness who is not a party to appear and testify at trial generally extends only as far as the state borders.30 Once a court has established personal jurisdiction over the parties, the court may order any out-of-state parties to appear at trial and testify as witnesses called by other parties.31 As to non-parties, in the absence of an interstate compact, a Delaware court cannot compel a non-resident non-party to testify at trial.
Delaware is not a party to any such compact applicable to civil cases. Instead, litigants can obtain commissions enabling them to go to the jurisdictions in which the witnesses reside, to obtain from the courts in such jurisdictions, in accordance with the laws and court rules of such jurisdictions, process to compel the witness to appear and be deposed, and to produce at the deposition books, documents, papers and tangible things.32 The deposition so obtained may be used at trial in place of live testimony to the extent provided in the rules of the court in which the trial is to be held.33
In criminal cases, defendants may be able to obtain the presence of out-of-state witnesses pursuant to the Uniform Law to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings Act (the “Act”).34 Under the Act, when a person in any state which has enacted a similar law is a material witness in a prosecution pending in a Delaware court or grand jury investigation which has commenced or is about to commence, a judge of a court of record in Delaware may issue a certificate under the seal of the court stating such facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to a government officer to assure attendance in Delaware. The certificate must be presented to a judge of a court of record in the county in which the witness is located.35
A witness who is summoned to attend and testify in Delaware pursuant to the Act must be paid ten cents per mile for each mile by the ordinarily travelled route to and from the court where the prosecution is pending plus $5.00 for each day the witness is required to travel and attend as a witness. A witness who has appeared in accordance with the summons is not required to remain in Delaware any longer than the period of time as stated in the certificate, unless otherwise ordered by the court. Failure to comply with a summons subjects the witness to punishment in the manner provided for the punishment of any witness who disobeys a summons issued from a Delaware court.36
If a person comes into Delaware to testify in a civil or criminal case, either voluntarily or in obedience to a summons or in connection with travelling to and from another state to testify, that person, while in Delaware, is immune from arrest or service of process, civil or criminal, in connection with matters that arose prior to the witness’s entrance into Delaware under the summons.37 Although the privilege generally extends not only to witnesses, but also to parties, judges, attorneys, jurors and other officers of the court present in Delaware for legal proceedings,38 the privilege does not apply to non-residents appearing in a Delaware court as defendants in a criminal action.39
30. Monsanto Co. v. Aetna Casualty & Surety Co., 559 A.2d 1301, 1307 (Del. Super. 1988). Cf. Blaustein v. Standard Oil Co., 56 A.2d 772, 781 (Del. Super. 1947); Webb Packing Co. v. Harmon, 193 A. 596, 597 (Del. Super. 1937).
31. Hoechst Celanese Corp. v. National Union Fire Insurance Co. of Pittsburgh, P.A., C.A. No. 89C-SE-35-RSG, slip op. at 3, Gebelein, J. (Del. Super. Aug. 18, 1997); Kingsbridge Capital Group v. Dunkin Donuts, Inc., C.A. No. 10907, slip op. at 2, Chandler, V.C. (Del. Ch. Sept. 6, 1989) (citing 10 Del.C. § 362). See also 10 Del. C. §§ 562 (Superior Court), 1316 (Court of Common Pleas). A court should only exercise its discretionary power to compel a non-resident party to appear at trial to testify upon a showing that the party calling the witness employed the appropriate discovery devices, such as depositions, and such devices are inadequate for trial purposes. Saxe v. Brady, C.A. No. 1250, slip op. at 3, Seitz, V.C. (Del. Ch. Dec. 20, 1961); Van de Walle v. Unimation, Inc., C.A. No. 7046, tr. at 28, Jacobs, V.C. (Del. Ch. Jan. 30, 1989) (transcript ruling). A court may also take into account whether there would be hardship or undue burden upon the witnesses or the party. Hoechst Celanese Corp. v. National Union Fire Insurance Co. of Pittsburgh, PA, C.A. No. 89C-SE-35-RSG, slip op. at 3, Gebelein, J. (Del. Super. Aug. 18, 1997).
32. See 10 Del. C. §§ 368, 562, 1316.
33. See § 12:13.
34. 11 Del. C. § 3521, et seq.
35. 11 Del. C. § 3523(a). Similar provisions permit compelling Delaware residents to appear and testify at trials in other jurisdictions upon a showing satisfactory to a Delaware court that such action will not cause undue hardship to the witness and the witness is material. 11 Del. C. § 3522.
36. 11 Del. C. § 3523(b).
37. 11 Del. C. § 3524; Northumberland Ins. Co. v. Wolfson, 251 A.2d 194, 194-96 (Del. 1969); Webb v. O’Rourke, 189 A.2d 74, 75 (Del. Super. 1963). See also Brooks v. State, 79 A. 790, 794 (Del. 1911); State ex rel. Wolcott v. Biedler, 99 A. 278, 280 (Del. Super. 1916).
38. See Brooks v. State, 79 A. 790 (Del. 1911); State ex rel. Wolcott v. Biedler, 99 A. 278, 280 (Del. Super. 1916).
39. Webb v. O’Rourke, 189 A.2d 74, 78 (Del. Super. 1963).
© 2010 David L. Finger