JUN 02 2008

Compensating Defendants To Attend a Trial (by Public Entities)

Miscellaneous

In my opinion, having a written reimbursement policy for all defense witnesses you subpoena would be reasonable. A witness should be entitled to an accommodation allowance, a meal allowance, a travel allowance, and an allowance for loss of earnings. Under certain circumstances, allowances for witness aides (in the event of disabled persons) or for child care helpers (in the event of parents with a need for such help) should also be included. Such allowances should be subject to reasonable limits and supporting documentation. For example, the net loss of income might be verified by an employer letter or a CPA letter stating the net amount of income.

However, in California, you’re required to pay your subpoenaed witness $35 per day and $0.20 a mile (Government Code Section 68093) only upon the request of the witness. For public employees, the individual’s regular compensation is required. In my reading of the code, there doesn’t seem to be much room for discretion {disclaimer: consult your attorney].

If consistent, documented, and disclosed procedures are not followed, anti-gratuity laws may apply ( see, for example, Section 201(c)(2) of Title 18 of the United States Code ).

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