Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1976, p. 1366, § 5 and former O.C.G.A. § 24-10-94 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).

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 may 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) (decided under Ga. L. 1976, p. 1366, § 5).

No absolute right to witness.

- Party requesting the presence of an out-of-state witness did not have an absolute right to obtain the witness. 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, § 5).

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. 1336, § 5).

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) (see now O.C.G.A. § 24-13-92), 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, and must determine only whether the out-of-state witness was a "material witness" in the Georgia criminal prosecution and whether it 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. § 24-10-94).

Error in applying hearsay rules in determining witness status.

- 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).

Failure to determine if witness material.

- Defendant was entitled to a new determination as to whether the defendant was entitled to subpoena an out-of-state witness because the trial court weighed the safeguards protecting the validity of the test results and the trial process generally and essentially determined that the witness was not necessary rather than evaluating whether the out-of-state witness was "material." Spann v. State, 318 Ga. App. 740, 736 S.E.2d 749 (2012) (decided under former O.C.G.A. § 24-10-94).

Judicial discretion.

- As to out-of-state witnesses to whom the court's subpoena power was inapplicable, the decision whether to utilize the provisions of 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.), was purely discretionary. Ealy v. State, 251 Ga. 426, 306 S.E.2d 275 (1983) (decided under former O.C.G.A. § 24-10-94).

Witness not material.

- Trial court properly concluded that an out-of-state witness, who could have testified as to source codes for the breath testing device, was not "material" as the defendant presented no evidence mouth alcohol was present during a breath test such that an error message should have been generated that was not; the mere possibility that alcohol remained in the defendant's mouth due to a surgical implant and retainer was not evidence pointing to actual existence of excess alcohol in the mouth. Cronkite v. State, 293 Ga. 476, 745 S.E.2d 591 (2013)(decided under former O.C.G.A. § 24-10-94).

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, § 5).

Trial counsel was not ineffective for failing to take the steps necessary to try to secure an alibi witness, after counsel made attempts to locate the witness, and based on the testimony of both of defendant's accomplices, and the evidence corroborating that testimony, it was unlikely that the trial would have been different had this alleged alibi witness been found, specially subpoenaed, and testified. Ziegler v. State, 270 Ga. App. 787, 608 S.E.2d 230 (2004), cert. denied, 546 U.S. 1019, 126 S. Ct. 656, 163 L. Ed. 2d 532 (2005) (decided under former O.C.G.A. § 24-10-94).

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. § 24-10-94).

Out-of-state corporation could be "a person" that was a material witness 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.), and could be determined to be in possession of material evidence, and the expedient course was to permit a party to request that a corporation, rather than the corporation's human agent, be found to be a material witness under the Uniform Act and leave the issue of designation of the corporation's human agent to the corporation; the designation need not occur until after a certificate of materiality had been issued by the Georgia trial court and the court in the county in which the out-of-state corporation was located conducted a hearing which the corporation had been ordered to attend, on the request for issuance of a summons to appear at the Georgia trial with the material evidence purportedly in the corporation's possession under former O.C.G.A. § 24-10-92(a). Yeary v. State, 289 Ga. 394, 711 S.E.2d 694 (2011) (decided under former O.C.G.A. § 24-10-94).

In 10 driving under the influence cases, because the defendants failed to present any evidence of facts supporting the existence of an error in their breath test results as required by case law, the trial court did not abuse the court's discretion when the court determined that the defendants failed to show that the machine's manufacturer was a material witness under the Uniform Act to Secure Attendance of an Out-of-State Witness, O.C.G.A. § 24-13-94(a). Young v. State, 324 Ga. App. 127, 749 S.E.2d 423 (2013).

Continuance of case properly denied.

- Trial court did not abuse the court's discretion by denying the defendant's request for a continuance because the court had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information and witnesses from the breathalyzer manufacturer set the case with enough time for the defense to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required the defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013).

Trial court did not err by denying the defendant's motion for a ruling that the source code for the Intoxilyzer machine on which the defendant's breath was tested was evidence relevant to the defense because the motion was not in compliance with the former Uniform Act to Secure 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.); the defendant's motion sought a relevancy ruling solely to facilitate production of the source code from a corporation in the State of Kentucky, but there was nothing in the record showing that the defendant identified or sought to obtain testimony from a witness who had to be compelled to produce the evidence. Yeary v. State, 302 Ga. App. 535, 690 S.E.2d 901 (2010) (decided under former O.C.G.A. § 24-10-94).

Trial court did not abuse the court's discretion in denying the defendant's motion for a certificate of need for testimony because the testimony of the expert the defendant presented did not establish the materiality of the evidence sought pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State, former O.C.G.A. § 24-10-94(a), which must be supported by admissible and probative evidence; the expert was required to testify to some fact indicating the possibility of an error in the case, but the expert was only able to speculate. Cronkite v. State, 317 Ga. App. 57, 730 S.E.2d 694 (2012) (decided under former O.C.G.A. § 24-10-94).

Full faith and credit given to out-of-state order.

- Trial court did not err by requiring defendant to proceed to trial without the source code and other requested information because it had granted a certificate pursuant to O.C.G.A. § 24-13-94 to permit the defense an opportunity to obtain the information from the manufacturer located in Kentucky, set the case with enough time to do so, and, after the Kentucky court issued an order denying the request, which order was entitled to full faith and credit, required defendant to proceed to trial. Phillips v. State, 324 Ga. App. 728, 751 S.E.2d 526 (2013).

Cited in Parker v. State, 296 Ga. 586, 769 S.E.2d 329 (2015).

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, § 41. 98 C.J.S. (Rev), Witnesses, §§ 20 et seq., 32 et seq., 119, 121, 203, 226.