3-19.100
Regular Witness
|
General assistance on witness matters is available by calling
202-307-1942 or 202-307-1943 or writing to the Simplified Acquisition
Services, Attention: Special Authorizations, Procurement Services Staff,
Justice Management Division, Suite 1040, National Place Building, Washington
DC 20530. Procedures for the acquisition of expert witnesses and litigative
consultants is found in USAP 3-19.000.001(M).
The Department is authorized to pay for compensation of the following
witnesses:
[updated October 2002]
3-19.111
Expert Witness
|
An expert witness qualifies as an expert by knowledge, skill,
experience, training or education, and may testify in the form of an opinion
or otherwise. (See Federal Rules of Evidence, Rules 702 and 703). The
testimony must cover more than a mere recitation of facts. It should
involve opinions on hypothetical situations, diagnoses, analyses of facts,
drawing of conclusions, etc., all which involve technical thought or effort
independent of mere facts.
3-19.112
Fact Witness
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A fact witness is a person whose testimony consists of the recitation of
facts and/or events, as opposed to an expert witness, whose testimony
consists of the presentation of an opinion, a diagnosis, etc.
3-19.113
International Witness
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An international witness is a witness who resides outside the territory
of the United States. They may be citizens of other countries or of the
United States. The Department of Justice must observe the laws and
regulations of the other countries when contacting these persons.
3-19.114
Protected Witness
|
28 U.S.C. Sec. 524. Title V of Pub.L. No. 91-452 and 98-473 authorizes
the Attorney General to provide for the security of government witnesses and
potential witnesses, and members of their families.
3-19.121
Subpoenas
|
Praecipes for subpoenas for witnesses are not required by Rule 17(a),
Fed.R.Cr.P., and Rule 45(a), Fed.R.Civ.P. Praecipes for subpoenas should
not be prepared unless local rules or practice makes their use mandatory.
Any praecipes necessary should be prepared by the United States Attorney or
the Assistant in charge of the case.
3-19.124
Advances
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Advances to witnesses for lodging, air and ground transportation tickets
are available through a Government Travel Account (GTA). The GTA benefits
both the witness and the United States Attorney's office by reducing the
financial burden of the witness, simplifying travel arrangements, and
improving lodging management.
3-19.130
Certificate of Attendance and Payment
|
Form OBD-3 (Fact Witness Voucher) is a three-part, four copy snap-out
form and provides for certification of attendance by the United States
Attorney for the regular (fact) witness claim for fees and allowances, and
for payment of the claim by the appropriate paying office. Payments are
made by the U.S. Marshal for the district in which the trial or hearing is
held.
3-19.200
Witness' Expenses Incurred on Behalf of Indigent Persons
|
Generally, expenses incurred on behalf of indigent persons will be
handled in the same manner as expenses incurred on behalf of the
government.
Certification of attendance is by a Federal Public Defender, U.S.
District Judge, or Clerk of the Court.
For stenographic and notarial charges related to depositions, refer to
Depositions, USAM 3-19.800.
Expenses pursuant to a court's order allowing witnesses for an indigent
under Rule 17(b) may include those of state or federal guards, etc., in
producing prisoners under writs of habeas corpus ad testificandum.
3-19.210
Responsible Payor
|
The enactment of 18 U.S.C. Sec. 3006A resulted in changes of
responsibility for payment of certain expenses of litigation for persons
allowed to proceed in forma pauperis.
[updated October 2002]
3-19.310
Subpoenas for U.S. Citizens and International Witnesses
|
It is important that all United States Attorneys' offices and
Department attorneys contact the Office of International Affairs (OIA) prior
to contacting United States citizens and Alien residents who are in foreign
countries and whose status as United States immigrants is unchanged.
[cited in USAM 3-1.200]
3-19.312
Witness' Advance—American Citizens—Compensation for
Necessary Travel to the United States
|
American citizens are entitled to receive compensation for necessary
travel to the United States. The Consular Mission can make such payments
directly from Department of Justice FEW funds when effecting service of the
subpoena, provided Special Authorizations, arranges for disbursing
authorizations.
3-19.320
Foreign Nationals Residing in Foreign Countries—Obtaining
Attendance
|
Since foreign nationals residing in the foreign countries are not
subject to the subpoena power of United States Courts, their attendance can
be obtained only on a voluntary basis. Obtaining testimony from foreign
nationals is often a delicate matter, and care must be taken to avoid
offending the sovereignty of the foreign country involved.
[cited in USAM 3-1.200]
3-19.322
Witness Fees for Foreign Nationals
|
The present witness allowances under 28 U.S.C. Sec. 1821 are generally
acceptable to foreign nationals. Therefore, payment of the statutory rates,
subsistence and actual cost of transportation may be made on the basis of
the witness attendance certificate, and Form OBD-47 is not necessary.
3-19.340
Request for Foreign Counsel
|
After the necessity for such counsel has been approved by the head of
the division or office, the United States embassy or consulate in the
country involved should be requested to furnish a list of qualified and
suitable counsel. As a general policy, consular officers do not recommend a
particular attorney with respect to private matters. However, in government
cases, consular officers will recognize the government's interest and will
be prepared to give information.
3-19.400
Federal Government Employees as Witnesses
(Non-Military)—Compliance with Subpoenas Duces Tecum
|
Whenever such a subpoena is served on a United States Attorney or any
other Department of Justice officer or employee, he/she should proceed in
compliance with Departmental policy regarding property management,
disclosure of information, and records management.
[cited in USAM 3-8.622]
3-19.411
DOJ Employees Under Subpoena
|
See 28 C.F.R. Sec. 16.21 et seq.
When a subpoena is served on an officer or an employee of the Department
by or on behalf of a private litigant, the Federal Rules of Civil Procedure
(Rule 45(c)) require that the employee be tendered one day's witness fee
plus mileage. Any other service is not legal service under the Rules.
Frequently, the purpose of the subpoena is served by the submission of
documentary evidence or other written instrument to the court, instead of by
personal appearance. If the substituted type of compliance is accepted by
the litigant, it is the policy of the Department of Justice to consider that
the fee and the mileage have been earned.
If the officer or employee complies with the subpoena by appearing in
court in his/her official capacity, he/she must look to the private litigant
for his/her fees and mileage. No charge will be made against annual leave.
Any amount received in excess of actual expenses will be forwarded in the
same manner as above. See Department of Justice Order 1630.1B (July 22,
1991).
If subpoenaed in his/her private capacity, on behalf of a private party,
the Department of Justice employee will look to the litigant for fees and
mileage. Such absences are charges to annual leave. All fees and mileage
received are retained by the employee.
[updated August 2001]
3-19.412
Serving a Subpoena Government Officers, Agents or Employees
|
U.S. Marshals have been instructed that expenses of travel and
subsistence solely for the purpose of serving subpoenas upon government
officers, agents or employees should not be incurred. The United States
Attorney may have subpoenas delivered by mail directly to the officer whose
attendance is desired, or in the case of agents or other employees, to the
head of the office in which they are employed, in sufficient time to enable
them to acknowledge the receipt of the subpoenas specified.
Special Agents of the FBI and Federal Government agents generally
should not be subpoenaed from distant points unless their testimony is
material and there is every reason to believe that there will be no
postponement of the trial.
Federal government employees may be secured by the United States
Attorney through direct communication (preferable) with witness or subpoena.
The employing agency should be requested to supply any necessary travel
advance.
3-19.420
Federal Government Employees—Witness Fees
|
Federal government employees shall not be paid witness's fees but the
period of such service shall be without loss of salary or compensation and
shall not be deducted from any authorized leave of absence with pay. See 5
U.S.C. Secs. 5537 and 6322.
[cited in USAM 3-19.500]
3-19.421
Federal Government Employees—Expenses for Travel
|
Any officer or employee of the United States or any agency thereof,
summoned as a witness on behalf of the United States, shall be paid his/her
necessary expenses incident to travel in accordance with the provisions of
the Standardized Government Travel Regulations. See the
EOUSA Resource Manual at 146.
[updated July 2007]
3-19.500
Armed Forces Witnesses—Military Personnel—Fees and Travel
Expenses
|
The rules governing the payment of fees and travel expenses are the same
for military employees as for nonmilitary employees. See USAM 3-19.420.
3-19.600
Prisoners as Witnesses
|
A federal prisoner serving a sentence may be produced to testify or to
be prosecuted in another district only upon a writ of habeas corpus in
proper form. (Writs ad testificandum must not be used to produce federal
prisoners for examination by United States Attorneys or investigative
agencies.)
The marshal serving the writ of habeas corpus and the warden or
superintendent having custody of the prisoner must be named in the writ.
The marshal of the district in which the prisoner is in custody should serve
the writ or, if this is impossible, the marshal in the issuing district may
serve the writ requiring production of the prisoner.
A prisoner (federal, state, or county) in custody only as a material
witness may be paid the regular attendance fee if testifying as a witness.
Conversely, no attendance fee shall be paid to persons held on charges or
already convicted, whether under state or federal law. Further, no mileage
or per diem is allowable for any prisoners.
3-19.713
Interpreters
|
The Court Interpreters Act of 1978 requires the Director,
Administrative Office of the U.S. Courts (AOUSC) to "establish a program to
facilitate the use of interpreters in courts of the United States." The
AOUSC will prescribe standards for interpreter qualifications and will
certify the qualifications of individuals who may serve as interpreters in
bilingual proceedings and in proceedings involving persons whose hearing is
impaired. All costs for interpreter services necessary to enable a party to
comprehend the proceedings in the courtroom or in chambers, to communicate
with counsel in the immediate environs of the courthouse in connection with
ongoing judicial proceedings and to communicate with the presiding judicial
officer are payable from funds appropriated to the judiciary. Interpreter
services required by a criminal defendant to whom the government furnishes
representation under the Criminal Justice Act are payable from funds
appropriated to support that Act. The United States Attorney is generally
chargeable only for interpreter services necessary to interpret the
testimony of government witnesses. Although testimony situations are the
most common occasion for the use of interpreters, interpreters may also be
engaged for services necessary to determine the course of litigation. They
may be paid for, or provided transportation, facilities, equipment or
materials as necessary and appropriate to satisfy the United States
Attorney's requirements.
Interpreters are required to execute a written oath as prescribed by
AOUSC. The rate of compensation should be fixed by agreement with the
interpreter before the interpreter renders the service required by the
United States Attorney. Rates of compensation should correspond to rates
paid by the court. The AOUSC regulation (Sec. 1.72) currently permits the
presiding judicial officer to fix reasonable compensation according to the
prevailing rates at the location where the designated interpreter regularly
works.
It is the responsibility of the investigative agency to pay the costs
to translate and transcribe recordings of foreign language telephone
conversations obtained under authority of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 USC Sec. 2510 to 2520.
3-19.720
FBI Services
|
The FBI laboratory facilities are available for handwriting and
typewriting comparisons and other document studies, as well as for studies
in chemistry, toxicology, ballistics, hair, fibers, metallurgy, and other
related subjects. The FBI is prepared to supply technical assistance and
information in the fields of dynamics, electrical engineering, electricity,
fluorescence, histology, light, mathematics, mechanical engineering,
metallography, mineralogy, and physical chemistry.
To facilitate the assignment of expert witnesses from the FBI
laboratory, it is desirable that as much notice as possible be given to the
Bureau concerning the date upon which the testimony of the expert witness
who has made a laboratory examination will be required.
There are no charges for FBI services.
3-19.730
Expert Witnesses—Name-Check
|
In the interest of internal security and the proper handling of the
government's litigation, extreme caution should be exercised in the
employment of expert witnesses, consultants, etc. In particular, careful
consideration should be given to their professional ability, personal
character and integrity, and loyalty to the country. If there is any doubt
as to the latter, a name-check should be secured from the FBI.
3-19.740
Negotiations with Expert Witnesses
|
Actual arrangements for expert witnesses must be made by the United
States Attorney since he/she alone has the opportunity to explore the local
situation. Through judicious negotiation and bargaining with prospective
witnesses, the United States Attorney exerts a decided influence on the
terms of the final arrangement.
3-19.800
Depositions
|
Depositions should be taken whenever possible in order to reduce
expenditures. This rule should be particularly applied when it is necessary
to secure testimony of a witness living more than 100 miles from the place
of trial.
Depositions should be taken before notarial officers or other officers
authorized to administer oaths. See Rule 28, Fed.R.Civ.P. Depositions
before United States Magistrates should be taken only when such other
officers are not available.
[cited in USAM 3-19.200]
3-19.811
Depositions Taken in a Foreign Country
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