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Fri Aug 5, 2022, 08:22 PM

If subpoenaed for a federal Jan 6 trial in Wash DC, am I entitled to expenses?

Sounds like I might get hit with a witness subpoena for a freelance photographer who got arrested.

I don't know him very well but he did have a contract to do some freelance news photography for a publication I run in California before then. He covered both left-wing and right-wing protests even-handedly but only took photos for maybe 5 stories after pitching me on the ideas. I never even met him.

He was not on assignment for us when he went to D.C. on Jan. 6. I did not know he was going and have not heard from him since.

He had a press pass, and his public defender wants me to fly to DC and testify that he had done paid journalism work for us. I'm told he didn't do anything violent but was in the capitol taking photos (as apparently so were reporters for some major news outlets)

I have very mixed feelings about this, not knowing more.

So far I haven't been subpoenaed, only asked by the defense if I'd be willing to testify. But if I am subpoenaed, do I have to go? If so am I entitled to be reimbursed for airfare, hotel, etc? I did provide the documents(contract and copies of articles) that were requested.

I have 2 bad shoulders and a bad back. I can't haul a suitcase through an airport anymore and hubby doesn't have any vacation time to go with me. Can I ask for a ticket for a friend to come help me with the bags?

I asked if I could testify via Zoom or some other remote means, but was told that so far, the judge has not allowed this for anyone they've defended. They are going to try again and explain my medical constraints.


I don't know his reason for being there. I don't want to help get an insurrectionist off the hook, if his intents were other than journalism.

On the other hand, if this guy really was there as a freelance photographer, I hate to think of a young over-eager photographer going to jail potentially for several years.

I also don't want to be stuck with a big travel bill and a lot of missed work time.

He has a very common name so I couldn't find anything on social media or a Google search that might give me a clue.

What would you do, if subpoenaed?

Any lawyers out there who can advise of my rights, as it would be very costly to comply with a subpoena for a trial thousands of miles away, especially on short notice.


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Reply If subpoenaed for a federal Jan 6 trial in Wash DC, am I entitled to expenses? (Original post)
Liberty Belle Friday OP
drray23 Friday #1
Liberty Belle Friday #3
Effete Snob Friday #5
Effete Snob Friday #2
Liberty Belle Friday #4
Effete Snob Friday #6
Liberty Belle Friday #8
former9thward Friday #7
DarthDem Friday #9
Effete Snob Friday #10
DarthDem Friday #14
Effete Snob Saturday #15
DarthDem Saturday #16
rsdsharp Friday #11
Effete Snob Friday #12
Princess Turandot Friday #13

Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 08:26 PM

1. if a lawyer is asking you to come testify on behalf of their client.

they will shoulder the costs. Lawyers can't subpoena you to ask you to be a defense witness, it's up to you .

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Response to drray23 (Reply #1)

Fri Aug 5, 2022, 08:28 PM

3. Thanks. These are public defenders, not private attorneys. Does that still apply?

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Response to Liberty Belle (Reply #3)

Fri Aug 5, 2022, 08:33 PM

5. The information is wrong


I have no idea why someone thinks the Sixth Amendment has been repealed.

The defense in a criminal trial has an absolute right to compel your appearance. We put that in the Constitution:


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 08:27 PM

2. 28 USC 1821

https://www.law.cornell.edu/uscode/text/28/1821

$40 a day, 57.5 cents per mile.

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Response to Effete Snob (Reply #2)

Fri Aug 5, 2022, 08:33 PM

4. Thankyou.

This doesn't specifically mention airfare, just ground transportation etc. so I'm still unclear if airfare would be covered. Last minute fare especially could be prohibitively expensive.

Maybe a pittance for overnight lodging but my experience in the past with an airfare allowance during an emergency layover was their allowance didn't even cover the cost of the least expensive item on the menu of the hotel where they put us up.

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Response to Liberty Belle (Reply #4)

Fri Aug 5, 2022, 08:35 PM

6. Yes it mentions airlines


Airlines are common carriers.



A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness’s residence by the shortest practical route in going to and returning from the place of attendance.

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Response to Effete Snob (Reply #6)

Fri Aug 5, 2022, 08:37 PM

8. Thank you.

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 08:35 PM

7. A defense lawyer can request the court issue a subpoena.

And yes, you have to comply. The federal law is 49 CFR § 190.7 - Subpoenas; witness fees

The person requesting the subpoena has to pay the fees. These fees are not what you think they should be or want. What has to be paid is part of the law. You would have to ask the defense lawyer what is covered.

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 08:38 PM

9. If you do not live

Within the District or within 100 miles of the courthouse, the court may have no subpoena power over you. You may wish to research this.

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Response to DarthDem (Reply #9)

Fri Aug 5, 2022, 08:49 PM

10. That's in civil cases


This is a criminal case, not a civil case.

https://www.law.cornell.edu/rules/frcrmp/rule_17

(e) Place of Service.

(1) In the United States. A subpoena requiring a witness to attend a hearing or trial may be served at any place within the United States.

….

Note to Subdivision (e)(1). This rule continues existing law, 28 U.S.C. (former) 654 (Witnesses; subpoenas; may run into another district). The rule is different in civil cases in that in such cases, unless a statute otherwise provides, a subpoena may be served only within the district or within 100 miles of the place of trial, 28 U.S.C. (former) 654; Rule 45(e)(1) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix].

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Response to Effete Snob (Reply #10)

Fri Aug 5, 2022, 11:23 PM

14. Ayup

Quite accurate. My quick read of the OP somehow led me to conclude this was a civil matter.

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Response to DarthDem (Reply #14)

Sat Aug 6, 2022, 08:55 AM

15. I was surprised


I was just checking on the process for going through another district, and did not know the criminal rule was different.

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Response to Effete Snob (Reply #15)

Sat Aug 6, 2022, 03:41 PM

16. Believe me

There are plenty of litigants who do not appreciate the government restricting its own subpoena power in civil cases!

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 08:51 PM

11. Check 28 USC §1821

b) A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
(c)
(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness’s residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.
(2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses.

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 09:00 PM

12. Ummmm

“ He has a very common name so I couldn't find anything on social media or a Google search that might give me a clue. ”

Presumably you have the docket number of the proceeding, and regardless of how common his name is, you can probably get the complaint from the RECAP archive:

https://www.courtlistener.com/recap/

Criminal prosecutions are public proceedings, even if they aren’t done on social media.

https://apnews.com/article/nm-state-wire-government-and-politics-journalism-riots-70192823f35380b860b6f2708904bc5c

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Response to Liberty Belle (Original post)

Fri Aug 5, 2022, 09:38 PM

13. This might help to find him..

Near the bottom of left hand column, type the name into the box called 'party name', and click the 'search' button below it.

This is a search that I set up awhile back to find federal district cases occurring after 1/6 that mention "United States Capitol" in various forms. (Note that not all of the documents listed in a particular case are available at any one time, because they need to be 'gifted' by people using the courts' PACER system.)

1/6 cases on Court Listener

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