Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1976, p. 1366, § 3 and former O.C.G.A. § 24-10-92 are included in the annotations for this Code section.

Application of rules of evidence.

- Under Georgia's new Evidence Code, unless a fact-finding proceeding involves one of the 12 situations enumerated in O.C.G.A. § 24-1-2(c) and (d), the rules of evidence fully apply; similarity to one or more of the enumerated situations is insufficient to limit the applicability of the evidence rules. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Application of rules of evidence to issuance of material witness certificate.

- Under O.C.G.A. § 24-1-2(b), the rules of evidence apply to a proceeding for issuance of a material witness certificate under the out-of-state witness act unless one of the exceptions in § 24-1-2(c) or (d) applies. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Scope.

- Former statute did not provide for the issuance of a subpoena, but was rather a process for obtaining a court order for the production of the witness, who could also appear in the jurisdiction where the witness was found and convince the court to deny or quash the subpoena. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under former law).

Defendant lacked standing to complain of any procedural irregularities involved in obtaining a witness whom the state had procured by means of former O.C.G.A. Art. 5, Ch. 10, T. 24. Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988), cert. denied, 499 U.S. 982, 111 S. Ct. 1638, 113 L. Ed. 2d 733 (1991), rev'd on other grounds sub nom. Zant v. Moon, 264 Ga. 93, 440 S.E.2d 657 (1994) (decided under former O.C.G.A. § 24-10-92).

No guarantee of appearance.

- Right to compulsory process did not amount to a guarantee by the state that the witness requested by a defendant would in fact appear at trial, but only related to the issuance of the process. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under Ga. L. 1976, p. 1366, § 3).

Determination of whether witness was necessary and material.

- Court of appeals erred in ruling that the trial court did not abuse the court's discretion in denying the defendant's motion under the former Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), to obtain evidence possessed by a witness in Kentucky because the proper statute was not applied since the court of appeals stated that the defendant was required to show that the out-of-state witness was necessary and material to the case; whether the witness was "necessary and material" was one of the determinations that must be made under the Act, former O.C.G.A. § 24-10-92(b), by the judge in the county where the out-of-state witness was located, and the Georgia trial court evaluated the request under the Act, former O.C.G.A. § 24-10-94 (see now O.C.G.A. § 24-13-94), and must determine only whether the out-of-state witness was a "material witness" in the Georgia criminal prosecution and whether the court should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under former O.C.G.A. § 24-10-92).

It was the out-of-state judge who must decide whether the sought-after witness was necessary and material, not the requesting court in Georgia. The Georgia trial judge presented with a request for a certificate was charged with deciding whether the sought-after witness was a "material witness"; in light of the former Uniform Act, former O.C.G.A. § 24-10-97 (see now O.C.G.A. § 24-13-97), "material witness" was construed as a witness who can testify about matters having some logical connection with the consequential facts, especially if few others, if any, know about these matters. Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under former O.C.G.A. § 24-10-92).

Trial court did not err in ruling that, under former O.C.G.A. § 24-10-90 et seq., the victim's half-brother and a doctor were not material witnesses because the defendant failed to show the witnesses would have been material at the criminal trial. Aburto v. State, 327 Ga. App. 424, 759 S.E.2d 276 (2014)(decided under former O.C.G.A. § 24-10-90 et seq.)

Witness must be necessary and material.

- When the assistant state's attorney in Maryland presented evidence sufficient to persuade the requesting court that the Georgia resident was essential to the grand jury's investigation and the local Georgia trial court found the facts similarly persuasive, the Georgia resident, having presented no evidence, failed to convince the superior court to deny the state's petition to grant Maryland's request. Wollesen v. State, 242 Ga. App. 317, 529 S.E.2d 630 (2000) (decided under former O.C.G.A. § 24-10-92).

Out-of-state corporation.

- Court of appeals erred when the court concluded that a request under the former Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, former O.C.G.A. § 24-10-90 et seq. (see now O.C.G.A. § 24-13-90 et seq.), that an out-of-state corporation be required to produce purportedly material evidence in the corporation's possession had to be accompanied by the identification as a material witness of the corporate agent through which the corporation was to act because if the certificate of materiality was issued by the Georgia court, it was for the Kentucky corporation to identify the human agent through whom the corporation would act, perhaps in conjunction with the hearing that would be held in Kentucky upon receipt of the Georgia certificate of materiality. Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011) (decided under former O.C.G.A. § 24-10-92).

Trial court erred in applying the hearsay rules to exclude the appellant's proffered documents from the evidence the court considered in ruling on a motion for material witness certificates as to the Kentucky-based manufacturer of the breathalyzer because an exception under O.C.G.A. § 24-1-2(c)(1) applied. Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

Unlocated witness.

- Neither the Georgia nor the United States Constitution obligated the state to compel the attendance of witnesses who cannot be located within the state's jurisdiction. Mafnas v. State, 149 Ga. App. 286, 254 S.E.2d 409 (1979), overruled on other grounds, Davenport v. State, 289 Ga. 399, 711 S.E.2d 699 (2011) (decided under Ga. L. 1976, p. 1366, § 3).

Order to testify encompassed production of documents.

- Power to order a witness to travel to a foreign state for the purpose of testifying at a grand jury hearing implicitly encompassed the power to order the witness to produce relevant documents. Wollesen v. State, 242 Ga. App. 317, 529 S.E.2d 630 (2000) (decided under former O.C.G.A. § 24-10-92).

Am. Jur. 2d.

- 38A Am. Jur. 2d, Grand Jury, § 38. 81 Am. Jur. 2d, Witnesses, §§ 4, 6, 10, 34, 35, 39, 66, 68.

C.J.S.

- 38A C.J.S., Grand Juries, § 42. 98 C.J.S. (Rev), Witnesses, §§ 20 et seq., 32 et seq., 95, 116 et seq., 119, 121, 203, 226.