ordered writ has the benefit of allowing the committee to I. Nature of the Writ of Habeas Corpus Ad At English common law there were several species of the writ of habeas corpus, used to move prisoners from one court to another. The writ of habeas corpus ad testificandum issued to secure the presence of a prisoner at trial for testimony is among those listed. Blackstone 3 Commentaries *130. It was directed to the custodian of the prisoner with the object analogous to that sought by directing a subpoena duces tecum to the custodian of an evidentiary document, In re Thaw, 166 F. 71, 74-75 (1908), but in a situation where a subpoena would be unavailing. 8 Wigmore, Evidence §2199 (3rd. ed. 1940). It is to be distinguished from the other major forms of the writ; habeas corpus ad subjiciendum and habeas corpus ad prosequendum. Habeas corpus ad subjiciendum, sometimes referred to as the "Great Writ", constituted an inquiry into the cause of restraint. Blackstone, 3 commentaries *129-30. Ex The most popularly known, it is most often referred to by the shortened generic term "Habeas Corpus", as in the Constitution.1 Parte Bollman 4 Cranch 75, 95 (1807). The writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. Blackston, 3 commentaries *129. The federal district courts are expressly granted the power to issue the writ of habeas corpus ad testificandum in 28 U.S.C. §2241 (c) (5).2 Ballard v. Spradley, 557 F 2d 476, 480 (5th Cir. 1977). The decision to issue the writ rests within the discretion of the district court. Ballard, supra at 480. When determining whether it should issue a writ ad testificandum, the district court must exercise its discretion based upon consideration of such factors as whether the prisoner's presence will substantially further the resolution of the case; the security risks presented by the prisoner's presence, the expense of the prisoner's transportation and safekeeping, and whether the suit can be stayed until the prisoner is cleared without prejudice to the cause asserted. Ballard, supra at 480. 1 2 Art. I, §9 cl. 2 $2241(c) (5) also authorizes the federal district courts to issue writs of habeas corpus ad prosequendum. Ballard, supra at 477 fn. 2. Factors such as probability of success of the prisoner's It was early determined that the federal court's a prospective witness currently in Federal custody, §2241 (c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities.4 Its issuance in such cases is premised on the underlying principle that "no sovereign power may interfere with or lay claim to the custody of a prisoner legally incarcerated in the jails of another sovereign power, except that upon a proper showing, and as a matter of comity, one sovereign power will permit another sovereign power to have temporary custody of a prisoner then in the jails of the former either to stand trial, or testify in a trial to be conducted in the courts of the 3 4 See Adams v. U. S., 423 F. Supp 578 (E.D.N.Y. 1976) Barber v. Page, 390 U.S. 719 (1968) In addition, the court stated it is the policy of the U. S. Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs ad testificandum issued out of state courts. Barber, supra at 723-24. latter." Curran v. U. S., 332 F Supp. 259 (D. Del. 1971). The reciprocal honoring of the writ based on comity accommodates As an easy and flexible means of admin- Lunsford v. Hudspeth, 126 F. 2d 653 (10th Cir. 1942). In such cases it is proper to file the petition in the sovereign's court which is in the best position to evaluate the necessity for the prisoner's presence. 5 5 Curran v. U. S. supra. In Curran, a defendant in a Delaware prosecution petitioned in the Delaware district court for a writ of habeas corpus ad testificandum for the production of a federal prisoner as a witness in the state prosecution. In denying the petition, the court stated that not only does the power to issue the writ exist in the state court but "it is peculiarly within the knowledge of the State Court whether (1) the presence of the federal prisoner as a witness is necessary to aid the defense and (2) whether the defendant is without the necessary funds to pay for transporting the prisoner from a federal prison to the scene of the State Court trial. Upon the issuance of such a writ by the proper state court and service thereof upon the Marshal (together with the costs for transportation), he will honor it as a matter of policy, obviously growing out of reasons of comity." The court went on to say that a petition could be made, of course, to the district court; but particularly in the case of a petition : In the context of a congressional petition, such a standard Perhaps |