2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 8 - Procedure for Securing Attendance of Witnesses at Grand Jury or Trial Proceedings
§ 17-7-191. Subpoena Process for Witnesses of Defendant; When Subpoenas May Be Extended to Witnesses Outside of County

The defendant may, upon application to the committing judicial officer or to the clerk of the court to which he is committed or bound to appear for trial, obtain subpoenas for such witnesses as he deems material for his defense. The judicial officer or the clerk of the court shall issue such subpoenas requiring the witnesses to appear at the term of the court to which the defendant is committed or bound to appear and until his case is ended. The subpoenas so issued shall have the power and authority to compel the attendance of the witnesses at the court but shall not extend to witnesses for the defendant who reside outside the county until a true bill of indictment is found or an accusation is filed against the defendant.

(Ga. L. 1873, p. 33, § 3; Code 1873, § 3847; Code 1882, § 3847; Penal Code 1895, § 918; Penal Code 1910, § 943; Code 1933, § 27-414.)

- Uniform Act to Secure the Attendance of Witnesses from Without the State, § 24-13-90 et seq.

This section applied in seduction cases. Dowda v. State, 71 Ga. 481 (1883).

- Defendant should be granted a reasonable time within which to locate and procure the attendance of the absent witness, or a continuance of the case for the term. Battle v. State, 133 Ga. 182, 65 S.E. 382 (1909).

- Defendant is entitled to a continuance to procure testimony of witnesses. Chatfield v. State, 10 Ga. App. 40, 72 S.E. 513 (1911).

Accused had the right to have the presence of the inmate compelled by court order, pursuant to former O.C.G.A. § 24-10-61 (see O.C.G.A. § 24-13-61), and when the witness, without fault on the part of the accused, failed to be present when the case was called, the accused was entitled to a continuance in order to obtain the presence of the witness. Grant v. State, 212 Ga. App. 565, 442 S.E.2d 899 (1994).

Despite the defendant's failure to move for a continuance, when the effect of the trial court's ruling as to a sought-after witness was to grant the defendant a continuance to allow the defendant the opportunity to subpoena the witness, the defendant's argument that the trial court failed to grant a continuance on this ground was not supported by the record. Schramm v. State, 286 Ga. App. 156, 648 S.E.2d 392 (2007).

- If, after being committed by a magistrate, the defendant fails to exercise the defendant's right to subpoena a defense witness who is then available for service, and attempts to serve the witness after the defendant's indictment one month later, at which time the witness has left the county, the defendant has not employed means for securing the witness which were within the defendant's power to employ and therefore is not entitled to a continuance because of the absence of such witness. Coker v. State, 87 Ga. App. 411, 74 S.E.2d 12 (1953).

State's failure to call witness on the state's list did not deny the defendant's Sixth Amendment rights because under O.C.G.A. § 17-7-191, the defendant could have subpoenaed the witness if deemed necessary to the defendant for impeachment purposes. Johnson v. State, 232 Ga. App. 717, 503 S.E.2d 603 (1998).

- When the trial court, having conducted several hearings, is aware of the defendant's inept handling of the defendant's case, the court may act within the court's inherent authority to control proceedings before the court by requiring some competent person to determine materiality of testimony sought to be introduced by subpoenaed witnesses. Myron v. State, 248 Ga. 120, 281 S.E.2d 600 (1981), cert. denied, 454 U.S. 1154, 102 S. Ct. 1025, 71 L. Ed. 2d 310 (1982).

Court of appeals erred when the court concluded that a request under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see O.C.G.A. § 24-13-90 et seq.), that an out-of-state corporation be required to produce purportedly material evidence in the corporation's possession had to be accompanied by the identification as a material witness of the corporate agent through which the corporation was to act because if the certificate of materiality was issued by the Georgia court, it was for the Kentucky corporation to identify the human agent through whom the corporation would act, perhaps in conjunction with the hearing that would be held in Kentucky upon receipt of the Georgia certificate of materiality. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011).

Court of appeals erred in ruling that the trial court did not abuse the court's discretion in denying the defendant's motion under the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-90 et seq. (see O.C.G.A. § 24-13-90 et seq.), to obtain evidence possessed by a witness in Kentucky because the proper statute was not applied since the court of appeals stated that the defendant was required to show that the out-of-state witness was necessary and material to the case; whether the witness was "necessary and material" is one of the determinations that must be made under the Act, former O.C.G.A. § 24-10-92(b) (see O.C.G.A. § 24-13-92), by the judge in the county where the out-of-state witness is located, and the Georgia trial court evaluates the request under the Act, former O.C.G.A. § 24-10-94 (see O.C.G.A. § 24-13-94), and must determine only whether the out-of-state witness was a "material witness" in the Georgia criminal prosecution and whether the court should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011).

- Because the trial court could not compel a witness sought by the defendant to testify when the defendant failed to subpoena the witness, and there was no evidence in the record that the trial court ever ordered the witness to appear, no error resulted from the trial court's failure to enforce an order the court never issued; although the defendant filed a motion to compel the witness's attendance, absent an order on the motion, any alleged error related thereto was not preserved. Schramm v. State, 286 Ga. App. 156, 648 S.E.2d 392 (2007).

- Trial court did not err by requiring the defendant to proceed to trial without the source code and other requested information because the court had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information from the manufacturer located in Kentucky, set the case with enough time to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required the defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013).

Cited in Carter v. State, 11 Ga. App. 141, 74 S.E. 846 (1912); West v. State, 68 Ga. App. 56, 22 S.E.2d 115 (1942); Murphy v. State, 132 Ga. App. 654, 209 S.E.2d 101 (1974); Dodd v. State, 236 Ga. 572, 224 S.E.2d 408 (1976); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Teat v. State, 181 Ga. App. 735, 353 S.E.2d 535 (1987).

RESEARCH REFERENCES

C.J.S.

- 88 C.J.S., Trial, § 78 et seq. 97 C.J.S., Witnesses, §§ 3 et seq., 19 et seq.