§1825 — Title 28 Judiciary and Judicial Procedure | U.S. Code

Summary

The Attorney General must pay witness fees when the United States or a U.S. officer or agency is a party. For regular cases, the payment is certified by the U.S. attorney or assistant U.S. attorney, and for matters before a magistrate judge it is certified by that magistrate judge. If the witness is a defense witness who is not an expert and was subpoenaed with the court’s approval, the fee is instead certified by a Federal public defender (or assistant) when that office represents the defendant, or by the court clerk if a lawyer appointed under 18 U.S.C. 3006A files an affidavit that the witness attended. When someone proceeds without paying court costs (in forma pauperis) in a habeas case or under section 2255, the Attorney General pays witness fees on the district judge’s certificate. The same rules about defense witnesses (Federal public defender or clerk with an affidavit from a 3006A-appointed lawyer) apply. If the Attorney General will pay under these rules, fees and travel money do not have to be handed to the witness when the subpoena is served.

Title 28, §1825

Judiciary and Judicial Procedure — Source: USLM XML via OLRC

(a)In any case in which the United States or an officer or agency of the United States is a party, the Attorney General shall pay all fees of witnesses on the certificate of the United States attorney or assistant United States attorney, and in the proceedings before a United States magistrate judge, on the certificate of such magistrate judge, except that any fees of defense witnesses, other than experts, appearing pursuant to subpoenas issued upon approval of the court, shall be paid by the Attorney General—

(1)on the certificate of a Federal public defender or assistant Federal public defender, in a criminal case in which the defendant is represented by such Federal public defender or assistant Federal public defender, and

(2)on the certificate of the clerk of the court upon the affidavit of such witnesses’ attendance given by other counsel appointed pursuant to section 3006A of title 18, in a criminal case in which a defendant is represented by such other counsel.

(b)In proceedings in forma pauperis for a writ of habeas corpus, and in proceedings in forma pauperis under section 2255 of this title, the Attorney General shall pay, on the certificate of the district judge, all fees of witnesses for the party authorized to proceed in forma pauperis, except that any fees of witnesses for such party, other than experts, appearing pursuant to subpoenas issued upon approval of the court, shall be paid by the Attorney General—

(1)on the certificate of a Federal public defender or assistant Federal public defender, in any such proceedings in which a party is represented by such Federal public defender or assistant Federal public defender, and

(2)on the certificate of the clerk of the court upon the affidavit of such witnesses’ attendance given by other counsel appointed pursuant to section 3006A of title 18, in any such proceedings in which a party is represented by such other counsel.

(c)Fees and mileage need not be tendered to a witness upon service of a subpoena issued on behalf of the United States or an officer or agency of the United States, upon service of a subpoena issued on behalf of a defendant represented by a Federal public defender, assistant Federal public defender, or other attorney appointed pursuant to section 3006A of title 18, or upon service of a subpoena issued on behalf of a party authorized to proceed in forma pauperis, if the payment of such fees and mileage is to be made by the Attorney General under this section.

Notes & Related Subsidiaries

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §§ 600c, 608 (R.S. §§ 236, 823, 848, 855;

June 10, 1921, ch. 18, § 305, 42 Stat. 24; Apr. 26, 1926, ch. 183, § 3, 44 Stat. 324;

May 17, 1932, ch. 190, 47 Stat. 158;

June 25, 1936, ch. 804, 49 Stat. 1921; Oct. 13, 1941, ch. 431, § 2, 55 Stat. 736; Dec. 24, 1942, ch. 825, § 1, 56 Stat. 1088). Section consolidates parts of section 600c and 608 of title 28, U.S.C., 1940 ed., relating to payment of witnesses. Other provisions of such sections are incorporated in section 1821 and 1871 of this title. Provisions in section 600c and 608 of title 28, U.S.C., 1940 ed., for payment or certification on order of court were omitted as unnecessary and inappropriate on recommendation of the Judicial Conference Committee on Revision of the Judicial Code. Words in section 608 of title 28, U.S.C., 1940 ed., “to which they appear to be entitled on the certificate of attendance” following the words “all fees” and the concluding phrase “which sum shall be allowed the marshal in the General Accounting Office in his accounts were omitted as unnecessary.” The second paragraph is new. It conforms to Rule 45(e) of the Federal Rules of Civil Procedure but is inconsistent with Rule 17(d) of the Federal Rules of Criminal Procedure and supersedes that rule as to Federal criminal cases. The Department of Justice suggests that Rule 17(d) is unworkable. To attempt compliance each deputy marshal serving process must carry, on the average, $500 in cash on trips to serve process. The marshal must advance the money from his personal funds. The Comptroller General has not been able to set up any procedure to make it feasible to advance fees to Government witnesses. If a witness is served but fails or refuses to appear, the marshal is out of pocket the money advanced and has no recourse. In the exceptional cases of real necessity, the marshal supplies transportation to an indigent witness under established

Regulations

which protect the disbursement. Changes were made in phraseology.

Editorial Notes

Amendments

2020—Subsecs. (a), (b). Pub. L. 116–260, § 220(a), substituted “Attorney General” for “United States marshal for the district” in two places in introductory provisions. Subsec. (c). Pub. L. 116–260, § 220(b), substituted “Attorney General” for “United States marshal”. 1986—Pub. L. 99–651 amended section generally. Prior to amendment, section read as follows: “In any case wherein the United States or an officer or agency thereof, is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States Attorney or Assistant United States Attorney, and in the proceedings before a United States Commissioner, on the certificate of such commissioner. “In all proceedings, in forma pauperis, for a writ of habeas corpus or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis, on the certificate of the district judge. “Fees and mileage need not be tendered to the witness upon service of a subpena issued in behalf of the United States or an officer or agency thereof, or upon service of a subpena issued on behalf of a party, authorized to proceed in forma pauperis, where the payment thereof is to be made by the United States marshal as authorized in this section.” 1965—Pub. L. 89–162 inserted provisions that, in all proceedings in forma pauperis, for a writ of habeas corpus, or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis on the certificate of the district judge and that fees and mileage need not be tendered to the witness upon service of a subpena issued on behalf of a party authorized to proceed in forma pauperis where the payment thereof is to be made by the United States marshal as authorized in this section.

Statutory Notes and Related Subsidiaries

Change of Name

“United States magistrate judge” and “magistrate judge” substituted for “United States magistrate” and “magistrate”, respectively, in subsec. (a) pursuant to section 321 of Pub. L. 101–650, set out as a note under this title.

Effective Date

of 1986 AmendmentAmendment by Pub. L. 99–651 effective 120 days after Nov. 14, 1986, see section 105 of Pub. L. 99–651, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure.

§1825 Payment of Fees