(1) If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state is a material witness in a prosecution pending in a court of record in this state or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
(2) If the witness is summoned to attend and testify in this state, or if the witness appears voluntarily at the request of the prosecution or the defense and the court would have otherwise approved a certificate for such witness pursuant to subsection (1) of this section, he shall be tendered the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending or, in the alternative and at the discretion of the court, an airplane ticket and twenty dollars for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If a witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.
Source: L. 72: R&RE, p. 234, § 1. C.R.S. 1963: § 39-9-202. L. 87: (2) amended, p. 604, § 4, effective July 1.
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado — A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950).
Annotator's note. Since § 16-9-203 is similar to repealed § 39-6-3, C.R.S. 1963, and CSA, C. 48, § 467(3), relevant cases construing those provisions have been included in the annotations to this section.
This section is for the purpose of securing and assuring the presence of the witness at the trial or his testimony. Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950).
Post-conviction hearing is a criminal proceeding under this section. A post-conviction hearing held pursuant to Crim. P. 35(b) is not a civil proceeding. It is but one phase of a criminal proceeding, governed by the rules of criminal procedure and this uniform act. Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967).
Expenses of obtaining testimony of witnesses for indigent defendant must be paid by state. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).
Liable for advancements to such witnesses. Since the state will ultimately pay the costs of securing out-of-state witnesses for the defendant, there is no legal justification for holding that it is not liable for advancement of such costs as mileage and witness fees. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).
Abuse of discretion in denying continuance. Since testimony of missing out-of-state witnesses might well have led to defendant's acquittal, it follows that it was an abuse of discretion to deny defendant a continuance for the purpose of determining whether the provisions of this section and Crim. P. 17(b) would be applicable or whether some other method of obtaining the witnesses' testimony might be available. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).
Applied in Claxton v. People, 164 Colo. 283, 434 P.2d 407 (1967).