Request By:
Mr. Richard Moysenko
Inquiries, Ltd.
P.O. Box 62
Mayfield, Kentucky 42066
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; PAMELA J. MURPHY, ASSISTANT ATTORNEY GENERAL
This letter is in response to your letter of October 9, 1989, to Attorney General Frederic J. Cowan. Specifically, you requested an opinion of the Office of the Attorney General concerning payment for time spent complying with a subpoena.
As we understand the facts presented in your letter, you were designated as an expert witness by the circuit court in a criminal case pursuant to RCr 9.46, and thereafter conducted an examination within your area of expertise. Your findings not being favorable to the defendant, you were then compensated by him, but not subpoenaed to testify. The Commonwealth subpoenaed you, and although you were available at the Courthouse in compliance with the subpoena, you were never called to testify. You then presented a bill for your time spent complying with the subpoena to the Commonwealth's Attorney, who advised that his office had no funds for such payment.
RCr 9.46 provides:
The court may order the parties to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of its own selections. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of his duties by the court at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any, and may thereafter be called to testify by the court or by any party. He shall be subject to cross-examination by each party. The court may determine the reasonable compensation of such witness and direct its payment out of such funds as may be provided by law. The parties also may call expert witnesses of their own selection at their own expense.
We are of the opinion that while RCr 9.46 does allow the court to determine reasonable compensation for expert witnesses, that compensation is for work completed by the expert, not for testifying in court. We believe the provision in RCr 9.46 which states that parties may call expert witnesses of their own selection at their own expense was intended to ensure parties that it is permissible to have expert witnesses without the court's prior approval.
Subpoenas are issued by the clerks of the courts, and command the appearance and testimony of whomever is named on the subpoena and duly served. RCr 9.02(1). "Failure to tender to the witnesses any compensation for expenses shall not be a sufficient ground for failure to respond to the subpoena. " RCr 7.02(5). Failure to obey the subpoena is punishable as a contempt of court. RCr 7.02(7).
In responding to a subpoena, an expert witness already paid for his expertise, does no more than is required of any individual who is under the subpoena power of the courts. KRS 421.020, which allowed fees for Commonwealth's witnesses in felony cases, was repealed in 1978.
We note that your tendered invoice includes mileage of 123 miles. Under the provisions of KRS 421.015, a "witness who resides in a county other than that to which he is subpoenaed shall be allowed the same amount allowed state employees under KRS 44.060." In OAG 83-117, that section was determined to also allow reimbursement for necessary food and lodging expenditures as authorized in KRS 44.060, 45.101 and 45.180 (now repealed) . Claims must be presented to the court for approval and submitted to the clerk of the court for forwarding to the Finance and Administration Cabinet pursuant to KRS 44.020. Claims should be submitted in compliance with the regulations of the Finance and Administration Cabinet as found in 200 KAR Chapter 2:00 6 section 6(2). Receipts and documentation are required to be submitted with claims.
We sincerely hope this letter has provided you some assistance with your inquiry to the Office of the Attorney General.