§ 1825. — Payment of fees.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1825]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART V--PROCEDURE
CHAPTER 119--EVIDENCE; WITNESSES
Sec. 1825. Payment of fees
(a) In any case in which the United States or an officer or agency
of the United States 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 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 United States marshal for the
district--
(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 United States marshal for the district 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 United States marshal for
the district--
(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 United States marshal under this
section.
(June 25, 1948, ch. 646, 62 Stat. 951; Pub. L. 89-162, Sept. 2, 1965, 79
Stat. 618; Pub. L. 99-651, title I, Sec. 104, Nov. 14, 1986, 100 Stat.
3645; Pub. L. 101-650, title III, Sec. 321, Dec. 1, 1990, 104 Stat.
5117.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Secs. 600c, 608 (R.S.
Secs. 236, 823, 848, 855; June 10, 1921, ch. 18, Sec. 305, 42 Stat. 24;
Apr. 26, 1926, ch. 183, Sec. 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, Sec. 2, 55 Stat. 736; Dec. 24, 1942, ch. 825, Sec. 1, 56 Stat.
1088).
Section consolidates parts of sections 600c and 608 of title 28,
U.S.C., 1940 ed., relating to payment of witnesses. Other provisions of
such sections are incorporated in sections 1821 and 1871 of this title.
Provisions in sections 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.
Amendments
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.
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 Amendment
Amendment 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.
Section Referred to in Other Sections
This section is referred to in section 567 of this title.
