Thе petitioner, Jerome Simmons, appeals from the court's order granting the state's motion for production and to secure the attendance of an out-of-state witness pursuant to §
A writ of prohibition "is the counterpart to a writ of mandamus." Black's Law Dictionary 1212 (6th ed. 1990). The purpose of the writ is explained in Black's as "to cоnfine inferior courts to their proper jurisdiction and to prevent them from acting without or in excess of their jurisdiction; it is prеventive in nature rather than corrective." Black's LawDictionary 1212 (6th ed. 1990).
Section
"(a) 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 proceedings or grand jury investigations commenced or about to be commenced in this state is a material witness in a criminal proceeding 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. Said 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."
The only question this court must answer is whether §
To answer this question we must examine the purpose behind the Uniform Act. The Uniform Act's purpose was disсussed in depth in the following annotation, which states:
"The Uniform Act to Secure the Attendance of Witnesses from Without a Statе in Criminal Proceedings, which was approved by the National Conference of Commissioners of Uniform State Laws in 1931 and *903 amеnded in 1936, is intended to provide a means for state courts to compel the attendance of out-of-state witnessеs at criminal proceedings. In order to accomplish its purpose, the Uniform Act authorizes the issuance of a summons, which is defined to include a 'subpoena, order, or other notice requiring the appearance of a witness,' directing a witness to attend and testify at a criminal proceeding.
"While it is clear that the Uniform Act permits the courts of onе state to secure the attendance of witnesses from another state to give testimony in a criminal prosecution or grand jury investigation, a question has arisen in a number of cases whether the Act authorizes the issuance of a subpoena duces tecum to compel the production of books and records. In resolving this question, the courts generally hаve been guided by the purpose of the Act and its relevant language.
"Some courts have taken the position that in view of the remedial purpose of the Act and also in view of the broad construction placed on the term 'subpоena' in similar statutes, it is clear that the Act authorizes the issuance of a subpoena duces tecum."
Annot., Availability under Uniform Act to Secure the Attendanceof Witnesses from Without a State in Criminal Proceedings ofSubpoena Duces Tecum,
The majority of states that have been presented with this issue have interpreted the Unifоrm Act to include the power to issue subpoenas duces tecum. See In re Saperstein,
However, there is authority for the propоsition that the Uniform Act does not include the right to issue a subpoena duces tecum. See In re Grothe,
The Massachusetts Court of Appeals in Application of GrandJury of State of New York, stated the following:
"The Uniform Act makes no mention of subpoena duces tecum or of the power of a court under the Act to order the production of documents. That silence does not necessarily imply a rejection of the power. The powers to compel the testimony of a witness are so similar in nature and so fundamental to the gathering of evidence in judicial proceedings that one is hard put to imagine a reason for permitting the former and rejecting the latter; and one suspects that a conscious intention to differentiate between tеstimonial and documentary evidence would have found some concrete expression in the words of the Act, rather than mere silence. It is not inconceivable that the question of how the Act would relate to the production of dоcuments simply never occurred to the Commissioners on Uniform State Laws. The record of their deliberations can be read as confirming such a suspicion, for we find therein no reference to the production of documents even in pаssing, much less as a discrete subject of discussion."
We agree with the Massachusetts Court and with the majority of the courts, which hold that the Uniform Act authorizes the issuance of a subpoena duces tecum.
For the foregoing reasons, the petitioner's writ of prohibition is denied.
WRIT DENIED.
All the Judges concur. *904