MEMORANDUM

TO  Members of the Judiciary Committee
FROM  Jo A. Roberts, Senior Attorney
DATE  December 18, 2001
RE  Report and Recommendation of the Law Revision Commission on its Study of Witness Fee Statutes

By request of Senator Eric D. Coleman and Representative Michael P. Lawlor, Co-Chairmen of the Judiciary Committee of the Connecticut General Assembly, the Law Revision Commission undertook a study of witness fees in Connecticut courts. The purpose of the study was to conduct a review of sections of the Connecticut general statutes pertaining to the payment of witness fees and to make recommendations to the legislature as appropriate to provide a logical scheme for the payment of witnesses in Connecticut, including what expenses of witnesses should be paid, what amounts should be paid and, in each case, which party should pay various witnesses.

In response to the request, the Commission formed a study committee consisting of representatives of the Office of the Chief State’s Attorney, the Office of the Chief Public Defender, the Judicial Department, the Connecticut Trial Lawyers Association and Connecticut attorneys in private practice representing both the civil and criminal bars. A list of study committee members is attached to this report as Attachment A. As part of its review, the study committee considered, among others, the following issues:

1. Should there be a distinction between fees paid to witnesses in criminal and civil cases? Who should pay the fees in each case?

2. Should there be different pay schemes for in-state and out-of-state witnesses?

3. What are appropriate per diem and mileage amounts to pay witnesses? What other expenses should be covered?

4. How should police officers and firefighters be compensated and by whom?

5. Who pays, and how much should be paid, for expert witnesses?

The study was initiated in part by memoranda by members of the Office of the Chief State’s Attorney identifying some of the difficulties that office had in interpreting the statutes in question. Those memoranda are attached to this report as Attachment B.

Having completed its review, the study committee recommended to the Commission that revisions be made to several sections of the general statutes pertaining to witness fees. The committee believes that the revisions will resolve existing confusion about the statutes, while maintaining the present witness fee scheme. The study committee’s recommended revisions are contained in a proposed act, attached to this report as Attachment C.

On December 18, 2001, the Law Revision Commission voted to adopt the study committee’s report and recommendations, which are included in this report. The statutory revisions recommended in Attachment C are summarized below.

SUMMARY OF PROPOSED REVISIONS TO WITNESS FEE STATUTES

1. Section 1 of the proposed bill revises section 52-143 of the general statutes. The revisions to subsection (d) of the section have been made to specify that any attorney employed by the Office of the Attorney General, the Division of Criminal Justice, the Division of Defender Services and any special attorneys in the state’s attorney’s, public defender’s or attorney general’s offices are persons who may issue subpoenas on behalf of the state. The present subsection does not include attorneys in the Chief State’s Attorney’s Office, nor does it include attorneys appointed or designated to serve as special state’s attorneys, public defenders or attorneys general. The revisions coincide with similar revisions made to subsection (a) of section 52-260.

2. Section 2 of the proposed bill revises section 52-260 of the general statutes.

(a) The revision to subsection (a) of the section in line 25 is intended to establish that fees paid to witnesses in civil and criminal proceedings are the same. The study committee believed the subsection applies to both kinds of proceedings and, in any event, that no justification exists for a distinction between the two.

In line 27, the amount paid to witnesses for attendance at a proceeding has been increased to five dollars per day from fifty cents per day. The amount coincides with the amount paid to out-of-state witnesses under section under section 54-82i.

The language added in lines 23-24 and line 39 is intended to clarify that witness fees are to be paid under this subsection only when they have not otherwise been paid under sections 54-82i or 54-152 of the general statutes. Some confusion exists in cases where a witness seems to be covered by both section 52-260 and one of the other two statutes as to what amount the witness should be paid and which party should pay.

For example, under the current statutes, an out-of-state witness summoned by the state’s attorney may be payable under subsection (a) of section 52-260, meaning that he will receive fifty cents per day of attendance and be paid by the clerk of the superior court. The same witness also may be payable under subsection (d) of section 54-82i, meaning that he will receive five dollars per day of attendance, with the statute silent as to who pays. A question arose whether the witness may, in fact, be paid under both sections. The revisions clarify that the fees payable under section 52-260 are subject to payments made under the other cited statutes. In addition, subsection (d) of section 54-82i has been revised to clarify who pays the witness’ fees under that provision.

The deletion made in line 30 is consistent with the revision in line 21 making witness fees in both civil and criminal proceedings the same.

The additional language in lines 31-32 is intended to reflect current practice in issuing subpoenas. Presently, summoned witnesses are paid by the marshal at the time of service. The amount paid is based on the existing statutory amounts in section 52-260. The marshal then bills the summoning party for that amount. The revision clarifies that the summoning party is responsible for the fees paid at the time of service, and that, in the case of witnesses summoned by the state, unless paid in accordance with sections 52-82i or 54-152, payment will be made by the court clerk on the day of attendance.

The additional language in lines 33-36 tracks language in section 52-143 as to who may summon witnesses on behalf of the state and includes any attorney employed by the Office of the Attorney General, the Division of Criminal Justice, the Division of Defender Services and any special attorneys in the state’s attorney’s, public defender’s or attorney general’s offices. The revisions coincide with similar revisions made in subsection (d) of section 52-143. Fees of witnesses summoned by the state will be paid by the clerk of the superior court.

(b), (c) These two subsections have been revised primarily to make them gender neutral. The only substantive revisions appear in lines 46-47, 57 and 63, adding the phrase "by the summoning party" to clarify that the fees payable to police officers and firefighters will be paid by the party that summoned them, and in lines 48-49, 59-60 and 64-65 to allow for mileage reimbursement in the same amount allowed to state employees.

(d) This subsection has been revised only to make it gender neutral.

(e) The Commission recommends deleting this subsection. The subsection presently specifies that a witness may receive an additional payment of two dollars when confined upon an allegation of the state’s attorney that he will be a material witness in a criminal proceeding. The Commission believes the payment is so minimal that it is obsolete and not worth retaining.

Renumbered (e) No revision was made to this subsection.

Renumbered (f) This subsection has been revised only to make it gender neutral.

Section 3 of the proposed bill revises subsection (c) of section 54-82i of the general statutes.

In lines 101-102, the phrase "by the summoning party" was added to clarify that the witness fees will be paid by the party summoning the witness. This means, in reference to witnesses called by the state, that the fees paid under this subsection, rather than being paid by the clerk of the superior court, will be paid by the summoning office, e.g., the Office of the Chief State’s Attorney from the appropriation for the Division of Criminal Justice or the Office of the Chief Public Defender from the appropriation for the Division of Defender Services, etc.

In lines 105-106, the additional phrase is intended to clarify that the Chief State’s Attorney may pay expenses of an out-of-state witness summoned by that office in addition to the amounts specified under this subsection.

Proposed Language