THE MEANS OF SECURING THE ATTENDANCE AND TESTIMONY OF WITNESSES. In all persons who are competent may be com pelled to attend and testify.
A statute providing that judges shall ap point expert witnesses changes the character of criminal procedure and endangers the con stitutional safe-guards by giving undue weight to the testimony of the experts ap pointed by the court and the statute is in valid ; People v. Dickerson, 164 Mich. 148, 129 N. W. 199, 33 L. R. A. (N. S.) 917, Ann. Cas. 1912B, 688.
As to compelling expert witnesses to at tend, see EXPERTS.
Provision has been made by statute, in most if not in all of the states, for the case of persons living at an inconvenient dis tance from the place of trial, as well as for the case of such as are sick or about to leave the state, or otherwise likely to be put to great inconvenience by a compul sory attendance, and also for such as are already in a foreign jurisdiction, by allow ing the taking of their deposition in writ ing before some magistrate or officer near at hand, to be read at the trial; 1 Greenl. Ev. § 321.
In criminal cases, all persons are com pellable to appear and testify without any previous tender of their fees ; and any by stander in court may be compelled to tes tify without a previous summons or tender of fees ; 1 Greenl. 'Ev. § 311; Ex parte Cham berlain, 4 Cow. (N.' Y.) 49; Robinson v. Trull, 4 Cush. (Mass.) 249.
Where a witness before a police court was ordered to give surety for his appearance at the trial, and in default thereof was detained in jail for eighty days, it was held that he was entitled to witness fees as "in atten dance" upon the court for that period ; Kirke v. Strafford Co., 76 N. H. 181, 80 Atl. 1046, Ann. Cas. 1912C, 807.
But in civil suits which are between man and man, a party is allowed to compel the attendance and testimony of a witness only on condition of a prepayment or tender of his fees for travel to the place of trial, and for one day's attendance there. This seems, as a general rule, to be the least that can be tendered; 1 Greenl. Ev. § 310; Howland v.
Lenox, 4 Johns. (N. Y.) 311; White v. Judd, 1 Mete. (Mass.) 293; Hutchins v. State, 8 Mo. 288; Gunnison v. Gunnison, 41 N. H. 121, 77 Am. Dec. 764. See Bonner v. People, 40 Ill. App. 628; and a witness who attends without the payment or tender of his fees, Waives their tender or payment in advance ; Rozek v. Redzinski, 87 Wis. 525, 58 N. W. 262. In the courts of the United States, as well as in England, a witness may require his fees for travel both ways ; 1 Greenl. Ev. § 310 ; 6 Taunt. 88. And in civil cases a person cannot be compelled to testify, al though he chance to be present in court, un less regularly summoned and tendered his fees ; 1 Phill. Ev. 338. Being in attendance in obedience to a summons, he may, neverthe less, refuse to testify from day to day, unless his daily fees are paid or tendered ; 2 Phill. Ev. § 376. Whether or not he may refuse to attend from day to day without the prepay ment or tender his daily fees, is a matter about which there are different decisions; Mattock v. Wheaton, 10 Vt. 493; 14 East 15.
A witness may maintain an action against the party summoning him for his fees ; Stark. Ev. 1727. Federal courts allow mile age and per diem fees, although no sub pcena was issued ; Pinson v. R. Co., 54 Fed. 464; Eastman v. Sherry, 37 Fed. 844. As to compensation to experts, see Ex PERTS ; Dixon v. People, 168. Ill. 179, 48 N. E. 108, 39 L. R. A. 116.
Witnesses are also compellable to pro duce papers in their custody to which either party has a right as evidence, on the same principle that they are required to testify what' they know ; 1 Greenl. Ev. § 558. See DISCOVERY ; SUBPOENA DUCES TECUM.
This rule as to title-deeds appears to be peculiar to England. In this country, it is said that a witness, not a party, may be compelled to produce any of his private papers. Whether the court, on inspection, will require them to be put in evidence may be a matter of discretion ; Steph.