lacked probable cause to arrest the plaintiff.
The cogent question that the Court must address is not merely whether Griswald's expected testimony would be relevant, but rather, whether such testimony is necessary. This determination depends ultimately upon whether the probative value of the testimony justifies the expense and security risk associated with transporting an inmate to court from a correctional facility.
An example of the relevant inquiry is provided by Haywood v. Hudson, CV-90-3287 (CPS), 1993 WL 150317 (E.D.N.Y. Apr. 23, 1993). In Haywood, the plaintiff sought to obtain a writ for the production of two separate incarcerated witnesses who purportedly observed plaintiff's mental state through his speaking in his sleep, and for a third incarcerated witness who would testify concerning unrelated incidents within the prison that would be introduced to show a course of conduct. Judge Sifton concluded that, although such testimony would be relevant, it would not advance plaintiff's case substantially, and therefore did not outweigh the security and expense considerations associated with transporting these witnesses to plaintiff's trial. See id. at *6.
The instant case presents circumstances vastly distinguishable from those presented in Haywood. First, unlike Haywood, the writ is requested by the defendants. It would seem that the interests of justice favor extending to a defendant the benefit of the doubt to enable him to rebut effectively the plaintiff's allegations. Second, Griswald's testimony would appear to be pivotal to the defense. The defendants assert that Griswald will testify that he accompanied the plaintiff to the incident in question, and that the plaintiff intended to engage in a drug transaction. The power of in-court testimony to this effect would exceed substantially the presentation of such evidence through the reading of a deposition transcript. Finally, since the City of New York has offered to bear all associated costs, there is no concern with respect to the expense of transporting Griswald to the MCC in Manhattan and maintaining him there until the conclusion of trial. Accordingly, the Court finds that the balance of equities favors directing the production of Griswald to testify at trial.
2. Jurisdictional Concerns
The remaining factor to be considered is jurisdictional in nature, and arises under 28 U.S.C. § 1651(a), which authorizes a federal court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Specifically, the Court must determine whether it has the power to issue a writ to direct the production of an inmate incarcerated in a New Jersey state correctional facility.
The Court's research reveals surprisingly sparse case law dealing with this question. Indeed, the Second Circuit Court of Appeals does not appear to have considered this issue directly. See Adan v. Abbott, 85 Civ. 8771 (RWS), 1986 WL 4544, at *1 (S.D.N.Y. Apr. 10, 1986) ("There is no precedent within this circuit" for the extraterritorial issuance of a writ of habeas corpus ad testificandum.). The Court is able to find but one unreported case within this Circuit that even supports an inference that this question had been considered by the court. See Barnett v. Moon, 89- CV-262, 1993 WL 133725, at *1 (N.D.N.Y. Apr. 23, 1993) (noting earlier issuance of a writ of habeas corpus requiring the production of an inmate by the California Department of Corrections).
Although the number of reported cases in the other circuits that have considered this question can hardly be regarded as abundant, the prevailing view of the appellate courts favors the extraterritorial application of a writ of habeas corpus ad testificandum in appropriate circumstances. See, e.g., Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988); Itel Capital Corp. v. Dennis Mining Supply and Equip., Inc., 651 F.2d 405, 407 (5th Cir. 1981); Stone v. Morris, 546 F.2d 730, 737 (7th Cir. 1976). This determination has been premised upon the circuit courts' conclusion that the jurisdictional language of 28 U.S.C. § 1651(a) was intended by Congress to apply solely to the issuance of the "Great Writ," or habeas corpus ad subjiciendum. See Muhammad, 849 F.2d at 114; Itel, 651 F.2d at 407; Stone, 546 F.2d at 737. Analogizing Supreme Court precedent that has permitted the extraterritorial application of a writ of habeas corpus ad prosequendum, the circuits have concluded that, in an appropriate case, a district court may issue a writ of habeas corpus ad testificandum unfettered by jurisdictional restraints. See Muhammad, 849 F.2d at 114 (citing Carbo v. United States, 364 U.S. 611, 5 L. Ed. 2d 329, 81 S. Ct. 338 (1961)); Itel, 651 F.2d at 407 (same); Stone, 546 F.2d at 737 (same).
The Court finds the reasoning of the Fourth, Fifth and Seventh Circuits to be persuasive, and farther finds that the confluence of circumstances warrants the extraterritorial application of the requested writ in this case. As to these circumstances, the Court would like to comment upon two. First, the issuance of the writ is not the sole basis for jurisdiction in this action. Rather, the writ is ancillary to an action for which subject matter jurisdiction is founded upon 42 U.S.C. § 1983. Second, the interests of justice favor the production of the incarcerated witness. If Griswald were not to testify, the factual resolution of the police officers' probable cause to make an arrest would hinge almost entirely upon the jury's credibility determinations with respect to the defendant police officers and the plaintiff. Griswald's production at trial infuses an additional element into the evidentiary mix, namely, an eyewitness who is expected to testify as to the plaintiff's motive and behavior in connection with the incident in question. The introduction of deposition testimony in Griswald's place would not afford the jury the same opportunity to evaluate Griswald's credibility. In sum, the substantial probative value of Griswald's in-court testimony, coupled with the absence of controlling authority directing a jurisdictional restraint, leads the Court to conclude that the requested writ should be issued.
Defendants' motion requesting the issuance of a writ of habeas corpus ad testificandum is granted. This writ will be issued by the Court when the instant case is called for trial from the Court's 72-hour trial-ready list.
Joanna Seybert, U.S.D.J.
Dated: Brooklyn, New York,
July 7, 1994