By Susan E. Coleman
When an inmate brings a civil lawsuit, most courts order the inmate-plaintiff transported to court for trial, by issuing a writ of habeas corpus ad testificandum. For reasons of safety and cost, not to mention convenience, some courts now allow or may even require testimony by video-conference or introduction of videotaped deposition testimony in lieu of live testimony.
When the inmate-plaintiff seeks the testimony of an incarcerated witness, the federal courts usually also issue a writ to transport the third party witness to trial, provided s/he has given an affidavit or other statement indicating s/he has percipient knowledge and is willing to testify in court. The power to issue a writ is given to the federal courts by 28 U.S.C. § 2241(c), which states: “The writ of habeas corpus shall not extend to a prisoner unless — . . . (5) it is necessary to bring him into court to testify or for trial.”
But what about when a writ of habeas corpus ad testificandum is sought for an inmate that is neither a party nor a percipient witness in a lawsuit related to a prison or jail? For example, if Los Angeles Police Department officers are sued regarding an arrest or an investigation, and a third-party witness is now incarcerated, either the plaintiff or the defendants in the lawsuit may seek the inmate’s testimony. Who bears the costs of bringing the inmate to court? In most cases, the agency housing the inmate – such as a county jail or the California Department of Corrections and Rehabilitation — receives the court order and simply transports the inmate-witness to court, absorbing the fees for the transport into its operating budget.
However, the agency that houses the inmate-witness can object to the transport and seek a court order requiring the requesting party to pay the costs of transport. If the prisoner is put onto a bus for transfer to a nearby institution, and then brought to court by the closest prison’s transport staff, then the costs will be primarily the hourly wages for the two transport officers and the Sergeant in the follow van, plus mileage. Overtime wages should be included if a long court day is anticipated. The total costs of transport should be estimated and totaled, and presented to the court along with a request to have the party seeking the inmate-witness transport pay the costs. While this may not deter litigants from seeking inmate testimony, it will defray the costs of the transport for the housing agency and reallocate them to the appropriate party.
Another alternative is for the agency housing the inmate-witness to object to the transport and seek an alternate means of presenting the witness’s testimony, such as videoconference. This permits the inmate to testify in real time without being physically brought to court, reducing the risk of an altercation or escape. A trial deposition, i.e. a videotaped deposition taken just before or during trial, is another option that requires the attorneys — and not the inmate — to travel. If there are specific concerns with the transport, such as the inmate-witness having a particularly violent background or having attempted escape, those should also be noted as they will help to justify alternative options.
While an agency may weigh the costs of having counsel oppose or object to a writ, and find the legal fees exceed the costs of paying a transport team for one day of testimony, the transport costs can add up over time. If litigants become aware that the agency will request fee-shifting of the costs, it may deter requests for transport and/or force earlier consideration of alternatives. Additionally, if a motion or objection is prepared in one case, it can be easily modified for use in other cases with less time and expense in the subsequent cases. Thus, seeking to shift the costs of transport to the requesting party may be useful and economical in the long run.