2021 Georgia Code
Title 24 - Evidence
Chapter 13 - Securing Attendance of Witnesses and Production and Preservation of Evidence
Article 2 - Subpoenas and Notice to Produce
§ 24-13-25. Fees and Mileage; When Tender Required

Except as provided in Code Section 24-13-28, the witness fee shall be $25.00 per diem, and execution shall be issued by the clerk upon affidavit of the witness to enforce payment thereof. The payment of witness fees shall not be demanded as a condition precedent to attendance; but, when a witness resides outside the county where the testimony is to be given, service of the subpoena, to be valid, shall be accompanied by tender of the witness fee for one day's attendance plus mileage of 45› per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route. Tender of witness fees and mileage may be made by United States currency, postal money order, cashier's check, certified check, or the check of an attorney or law firm. When the subpoena is issued on behalf of this state, or an officer, agency, or political subdivision thereof, or an accused in a criminal proceeding, witness fees and mileage need not be tendered.

(Code 1981, §24-13-25, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- Witness fees for attendance before Judicial Qualifications Commission, Rules of the Judicial Qualifications Commission, Rule 18(d).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1799, Cobb's 1851 Digest, p. 277, former Laws 1842, Cobb's 1851 Digest, p. 280, former Code 1863, §§ 3765, 3768, former Code 1868, §§ 3789, 3792, former Code 1873, §§ 3842, 3845, former Code 1882, §§ 3842, 3845, former Civil Code 1895, § 5261, former Penal Code 1895, § 1115, former Civil Code 1910, § 5850, former Penal Code 1910, § 1144, former Code 1933, §§ 38-1502, 38-1902, and former O.C.G.A. § 24-10-24 are included in the annotations for this Code section.

- Mileage and per diem required by the former statute for out of county residents must have been tendered before their attendance could have been compelled. Neal v. Smith, 226 Ga. 96, 172 S.E.2d 684 (1970).

While a witness fee and mileage expenses might not have been a prerequisite to the production of documents, the subpoena and letter served upon the Georgia Department of Corrections' legal counsel instructed that "you are hereby required to be and appear" and listed the documents and evidence the Department was to bring to the hearing. Thus, pursuant to former O.C.G.A. § 24-10-24, the attendant witness fee and mileage expense were required. Williams v. Russo, 322 Ga. App. 654, 745 S.E.2d 842 (2013)(decided under former O.C.G.A. § 24-10-24).

- Nonresident witness was entitled to mileage from the county treasurer for the whole distance traveled from and returning to the witness's home. Dutcher v. Justices of Inferior Court, 38 Ga. 214 (1868).

- Witness could not charge for attendance rendered after the case had been postponed or continued, whether the witness happened to hear the announcement of the postponement or continuance or not. Robison v. Banks, 17 Ga. 211 (1855).

- No statute in Georgia allowed or prohibited fees to expert witnesses, and while there could be no charge beyond the legal fees of ordinary witnesses for attendance on the court in obedience to subpoena, still, as a physician could not be required to make any examination or preliminary preparations, or to listen to the testimony, in order the better to give the expert's opinion as an expert, the expert may have for such services demanded extra compensation. Schofield v. Little, 2 Ga. App. 286, 58 S.E. 666 (1907).

- There was no specific statutory authorization for assessing a criminal defendant for the lodging and airfare costs of witnesses for the state. Smith v. State, 272 Ga. 83, 526 S.E.2d 59 (2000), reversing Smith v. State, 236 Ga. App. 548, 512 S.E.2d 19 (1999) (decided under former O.C.G.A. § 24-10-24).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 38-1502 and 38-1902, and former O.C.G.A. § 24-10-24 are included in the annotations for this Code section.

Legislative intent of the former provisions was to eliminate witness fees in justice courts. 1970 Op. Att'y Gen. U70-234 (decided under former Code 1933, §§ 38-1502 and 38-1902).

- Former statute applied to both civil and criminal cases. 1972 Op. Att'y Gen. No. U72-55 (decided under former Code 1933, §§ 38-1502 and 38-1902).

- County must pay the per diem witness fee to witnesses summoned in criminal cases as well as to those summoned in civil cases; the source of funds for witness fees was from county taxes. 1970 Op. Att'y Gen. No. U70-11 (decided under former Code 1933, §§ 38-1502 and 38-1902).

Resident of county from which the subpoena originated was entitled to payment of the witness fee, but the resident cannot demand prepayment as a condition to the resident's appearance in court. 1967 Op. Att'y Gen. No. 67-311 (decided under former Code 1933, §§ 38-1502 and 38-1902).

Peace officer who, required by subpoena, attended court on behalf of the state during any hours except regular duty hours, was entitled to mileage as provided by former Code 1933, §§ 38-1502 and 38-1902; under these conditions, the officer was also entitled to per diem. 1971 Op. Att'y Gen. No. U71-57 (decided under former Code 1933, §§ 38-1502 and 38-1902).

State officer or agent was to be treated as an ordinary witness and would follow the same procedure and payment as was set forth in the former statute. However, if the state officer was a witness for the state, an officer, agency, or political subdivision thereof, or a defendant in a criminal case, fees and mileage need not be tendered as a condition precedent to appearance; as for the average citizen, service of the subpoena must be accompanied by tender of the above payment to a non-county resident or the subpoena was invalid; with respect to the rights of a county resident, this class of witness still had a right to the per diem witness fee, but the exact time of such payment was within the discretion of the court. 1967 Op. Att'y Gen. No. 67-311 (decided under former Code 1933, §§ 38-1502 and 38-1902).

RESEARCH REFERENCES

C.J.S.

- 98 C.J.S. (Rev), Witnesses, §§ 119, 121, 226.

- Amount of fees allowable to examiners of questioned documents or handwriting experts for serving and testifying, 86 A.L.R.2d 1283.