S 680.10 Examination of witnesses on commission; in general. 1. Under circumstances prescribed in this article, testimony material to a trial or pending trial of an accusatory instrument which charges a crime, may be taken by "examination on a commission" outside the state and received in evidence at such trial. 2. A "commission" is a process issued by a superior court designating one or more persons as commissioners and authorizing them to conduct a recorded examination of a witness or witnesses under oath, primarily on the basis of interrogatories annexed to the commission, and to remit to the issuing court the transcript of such examination. S 680.20 Examination of witnesses on commission; when commission issuable; form and content of application. 1. Upon a pre-trial application of a defendant who has pleaded not guilty to an indictment or other accusatory instrument which charges a crime, the superior court in which such indictment is pending, or a superior court in the county in which such other accusatory instrument is pending, may issue a commission for examination of a designated person as a witness in the action, at a designated place outside this state, if it is satisfied that (a) such person possesses information material to the action which in the interest of justice should be disclosed at the trial, and (b) resides outside the state. 2. The application and moving papers must be in writing and must be subscribed and sworn to by the defendant or his attorney. A copy thereof must be served on the district attorney, with reasonable notice and opportunity to be heard. The moving papers must allege: (a) The offense or offenses charged; and (b) The status of the action; and (c) The name of the prospective witness; and (d) A statement that such prospective witness resides outside the state, and his address in the jurisdiction in which the examination sought is to occur; and (e) A statement that he possesses information material to the action which in the interest of justice should be disclosed at the trial, together with a brief summary of the facts supporting such statement. 3. An application for issuance of a commission may request examination pursuant thereto of more than one person residing in the particular jurisdiction. In such case, it must contain allegations specified in subdivision two with respect to each such person, and the court must make separate rulings as to each. S 680.30 Examination of witnesses on commission; application by people for examination of witnesses. 1. Upon granting the defendant`s application for issuance of a commission, the court may, upon application of the people, determine that the commission shall also authorize examination of a person or persons designated by the people, who reside in the jurisdiction in which the examination proceeding is to occur, if it is satisfied that such person or persons possess material information, reside outside the state and otherwise meet the standards for examination of witnesses on a commission as prescribed in subdivision one of section 680.20. 2. Such application and the moving papers must be in writing, must be subscribed and sworn to by the district attorney, and copies thereof must be served upon the defendant and his attorney, with reasonable notice and opportunity to be heard. The moving papers must contain all of the allegations required upon a defendant`s application, as specified in subdivision two of section 680.20. S 680.40 Examination of witnesses on commission; when commission issuable upon application of people. When a commission has been issued upon application of a defendant pursuant to section 680.20, the court may, upon application of the people, issue another commission for examination, either in the same or another jurisdiction, of a person designated by the people, under the same conditions as prescribed in said section 680.20. In such case, the court may, upon application of the defendant, determine, in the manner provided in section 680.30, that such commission shall also authorize examination of a person or persons designated by the defendant. S 680.50 Examination of witnesses on commission; interrogatories. 1. Following an order for the issuance of a commission and the court`s designation of the witnesses to be examined thereon, each party must prepare interrogatories or questions to be asked of each witness who is to be examined upon his or its request, and must submit the same to the court and serve a copy thereof upon the other party. Following such submission and service, such other party may in the same manner submit and serve cross-interrogatories or questions, to be asked of the witness following his examination upon the direct inquiry. 2. After all such interrogatories and cross-interrogatories have been submitted and served, the court may examine them and, with opportunity for counsel to be heard, exclude and strike any question which it considers irrelevant, incompetent or otherwise improper or violative of the rules of evidence which prevail at a criminal trial. S 680.60 Examination of witnesses on commission; form and content of the commission. 1. The commission must be subscribed by the court and must contain: (a) The name and address of each witness to be examined; and (b) The name, or a descriptive title, of a commissioner or commissioners who, pursuant to subdivision two, are authorized to conduct the examination; and (c) A statement authorizing such commissioner or commissioners to administer the oath to witnesses; and (d) A direction that, upon completion of such examination, such commissioner or commissioners cause it to be transcribed and remit to the court the transcript, the commission, the interrogatories and all other pertinent instruments and documents. 2. The following persons may be designated commissioners: (a) If the examination is to occur within the United States or any territory thereof, any attorney authorized to practice law in the specified jurisdiction or any person authorized to administer oaths therein; (b) If the examination is to occur in a foreign country, any diplomatic or consular agent or representative of the United States employed in such capacity in such country, or any commissioned officer of the armed forces. 3. The court must cause the commission to be delivered to a commissioner designated therein, together with a copy of this article. S 680.70 Examination of witnesses on commission; the examination. The examination on the commission must be conducted as follows: 1. Each witness must testify under oath, and the examination must be recorded and transcribed. 2. Each witness must first be asked all the questions contained in the interrogatories submitted by the party requesting his examination. He must then be asked all the questions contained in the cross-interrogatories, if any, submitted by the other party. 3. The defendant has a right to be represented by counsel at the examination, and the district attorney also has a right to be present, but both such rights may be waived. Upon the conclusion of the questioning of a witness upon the written interrogatories, he may be further examined by the attorney or representative of the party who requested his examination, and may then be cross-examined by the attorney or representative of the adverse party. Each such attorney or representative may register objections to the authority or qualifications of the commissioner, to the manner in which the examination is conducted, and to the admissibility of evidence, and all such objections must be recorded and transcribed. 4. Documentary or other physical evidence may be produced and submitted by a witness. Such evidence must be subscribed or otherwise identified by the witness, and certified by a commissioner and annexed to the transcript of the examination as a part of the record. 5. After the examination is transcribed, the commissioner or commissioners must subscribe and certify the transcript as an accurate record of the proceedings, and must then remit such transcript and all other pertinent instruments, documents and evidence to the court which issued the commission, in accordance with the directions thereof. S 680.80 Examination of witnesses on commission; use at trial of transcript of examination. 1. When the transcript and record of the examination on commission are received by the superior court which issued the commission, they must be filed therewith if such court be the trial court, and, if not, transmitted to the trial court. A copy of the transcript must be delivered by the trial court to each party. 2. Upon the trial of the action, either party may, subject to the provisions of subdivision three, introduce and read into evidence the transcript or that portion thereof containing the testimony of a witness examined on the commission. 3. At any time prior to the introduction of such evidence, the trial court may examine the transcript and, upon according both parties opportunity to be heard and to register objections, may exclude and strike therefrom irrelevant, incompetent or otherwise inadmissible testimony. While the transcript or any portion thereof is being read into evidence at the trial by a party, the other party may register any objection or protest thereto that he would be entitled to register were the witness testifying in person, regardless of whether such protest has previously been raised and passed upon by the court, and the court must rule thereon. Top of Page
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