Subpoena Ad Testificandum - Immunity From Subpoena Service in Civil Cases

Immunity From Subpoena Service in Civil Cases

As a general rule, a witness who is in attendance at a trial in a state other than that of his residence is immune or privileged from the service of civil process (delivery of a subpoena in a civil case, but not a criminal case) while in such a state. Usually, immunity is granted to a witness who voluntarily appears to testify for the benefit of another, but it has also been held that the grant of immunity is not affected by the fact that the witness appearance was pursuant to a court order. The immunity is not affected by the witness' domination of a corporate defendant already in action, or the witness' potential liability as a co-defendant. A witness who appears in court as part of his official duties is immune from service of civil process, and it is irrelevant that his appearance was not under subpoena.

Contrary to the general rule, there has been opinion that non-resident witnesses are not exempt from civil process. Many courts encourage witnesses to come forward voluntarily and give testimony.

Immunity is based on the theory that the Court must be unimpeded in its goals, and fear of service could lead to witnesses not appearing, for fear of being served in another pending civil case.

There are two general rules followed:

1. The "sole purpose rule" where the rule cannot be invoked unless the only reason the party is in the jurisdiction is to attend the court's business.
2. The "controlling reason doctrine", which is more liberal, and allows a person testifying more latitude. So called "long arm statutes" have tended to mitigate immunity to some extent.

Various "long arm statutes" have changed the landscape of civil service across state lines. For instance, immunity from civil service to non-resident witnesses no longer applies in California after Silverman v. Superior Court.