Summary
The Oklahoma Supreme Court held that a district attorney who subpoenas a child witness must pay the undue expense of recording, transcribing, and videotaping the child's testimony when a court orders the testimony taken outside the defendant's presence under 22 O.S. § 753. The court relied on 12 O.S. § 2004.1(C)(1), which requires a subpoenaing party to take reasonable steps to avoid imposing undue burden or expense on the subpoenaed person. The court denied the motion to dismiss, reversed the trial court, vacated the Court of Civil Appeals opinion, and remanded with directions to enter judgment for the plaintiffs.
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Practice areas
Questions Presented
- Whether the appeal was a proper appeal from the trial court's determination of the district attorney's liability rather than an impermissible collateral attack on the Court Fund's decision.
- Whether the district attorney who issued the subpoena was responsible for paying the expense of recording, transcribing, and videotaping the child's testimony under the statutory duty to avoid imposing undue burden or expense on a subpoenaed person.
- What standard of review applied to the trial court's summary judgment.
Holdings
- The appeal was proper because it challenged the trial court's determination that the district attorney was not responsible for payment, not the Court Fund's separate decision denying payment.
- The district attorney who issued the subpoena was required to pay the expense associated with taking the child's testimony outside the defendant's presence because that expense was undue and the issuing party had a statutory duty to take reasonable steps to avoid imposing it on the subpoenaed child.
- Summary judgment is reviewed de novo.
Key quotations
“We conclude that the expense associated with taking testimony of a child outside the presence of the defendant, pursuant to 22 O.S.1991, § 753, is an undue expense that should not be borne by the child who is subject to the subpoena.” (48)
“We further conclude that the duty placed on the DA by 12 O.S.1993, § 2004.1(C)(1) to take reasonable steps to avoid imposing that expense on the subpoenaed child requires the DA to pay the expense associated with complying with the subpoena.” (48)
Factual background
The district attorney subpoenaed a twelve-year-old child to testify for the government in a felony criminal prosecution involving an alleged offense against another child. After a hearing, the trial court found the statutory prerequisites satisfied and ordered that the child's testimony be taken outside the defendant's presence and recorded for later presentation. Plaintiffs recorded, transcribed, and videotaped the testimony, incurring $664.50 in expenses, but neither the Court Fund nor the district attorney paid the amount.
Procedural history
The parents of a subpoenaed child obtained an order permitting the child to testify outside the defendant's presence under 22 O.S. 1991, § 753. Plaintiffs provided recording, transcription, and videotaping services, but the Court Fund and the district attorney declined payment. After plaintiffs sued the district attorney, the trial court entered summary judgment for him. The Supreme Court denied the motion to dismiss the appeal, vacated the Court of Civil Appeals' opinion, reversed the trial court, and remanded with directions to enter judgment for plaintiffs against the district attorney.
Remand instructions
Enter judgment in favor of the appellants against the district attorney for the expense associated with complying with the subpoena.