and is also liable to an action by the party serving the witness with the subpoena, for the damages sustained by him in consequence of the

arrest.

(c) An officer is not liable for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the witness, if the witness party claims the exemption, and makes an affidavit stating that:

(1) he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued;

(2) he has not thus been served by his own procurement, with the intention of avoiding an arrest; and

(3) he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena.

The affidavit may be taken by the officer, and exonerates him from liability for discharging the witness when arrested.

(d) The court or officer before whom the attendance is required may discharge the witness from an arrest made in violation of subsection (a) of this section.

§ 2558. Persons present

A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena issued by the court or officer.

§ 2559. Prisoner as witness

(a) Except in a criminal action, if the witness is confined. in a jail or prison within the Canal Zone, an order may be made by the district court for his examination in the prison upon deposition, or for his temporary removal and production before the district court, a magistrate's court, or an officer.

(b) The order may be made only on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.

§ 2560. Concealed witness

If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, the district court or magistrate's court issuing the subpoena may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the marshal or constable serve the subpoena; and the marshal or constable shall serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.

§ 2561. Interpreters

(a) If a witness does not understand and speak the English language, an interpreter shall be sworn to interpret for him.

(b) Any person, a resident of the proper division or subdivision, may be summoned by a court or judge to appear before the court or judge to act as interpreter in any action or proceeding. The summons shall be served and returned in like manner as a subpoena. A person so summoned who fails to attend at the time and place named in the summons is guilty of a contempt.

§ 2562. Witness fees

(a) Witnesses in the district court, either in actions or special proceedings, are entitled to $4 per day and 10 cents for each mile going to the place of trial from their homes by the nearest route of usual travel. Mileage may be charged but once in the action unless the

witness is compelled to attend more than one term of court, and an allowance may not be made for mileage except that traveled within the Canal Zone.

(b) Witnesses in magistrates' courts are entitled to $2 per day and the travel fees provided by subsection (a) of this section.

(c) Fees to which a witness may be entitled in a civil action shall be allowed on the affidavit of the witness, stating the number of days he has attended and the amount of mileage to which he is entitled, to be taken and preserved by the clerk of the court, magistrate, or other officer before whom the witness was called to testify, and a certificate of the allowance shall be given to the witness. On final taxation of costs the truth of the affidavit may be contested and this allowance may be set aside in whole or in part as the facts require.

(d) A witness is not entitled to compensation for his attendance in more than one case or on more than one side of the same case at the

same time, but may elect in which of several cases or on which side of the case, when he is summoned by both sides, to claim his attendance. A person who is compelled to attend court on other business is not entitled to compensation as a witness.

CHAPTER 105-PRODUCTION OF EVIDENCE

2641. Depositions and discovery generally.

2642. Depositions for use outside Canal Zone; Uniform Foreign Depositions Act. 2643. Depositions in foreign countries.

2644. Subpoena of witness in foreign country; contempt.

Subchapter I-General Provisions

8 2591. Mode of taking testimony

The testimony of witnesses may be taken in three modes:

(1) by affidavit;

(2) by deposition; and

(3) by oral examination.

§ 2592. Oral examination defined

An oral examination is an examination in presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.

Subchapter II-Affidavits

§ 2611. Affidavit defined

An affidavit is a written declaration under oath, made without notice to the adverse party.

§ 2612. Use of affidavits

An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy,

the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by another provision of this Code.

§ 2613. Proof of publication

(a) Evidence of the publication of a document or notice required by law, or by an order of a court or judge, to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman or principal clerk, annexed to a copy of the document or notice, specifying the times when, and the paper in which, the publication was made.

(b) If the affidavit is made in an action or special proceeding pending in a court, it may be filed with the court or the clerk thereof. The original affidavit, or a copy thereof, certified by the judge of the court or clerk having it in custody, is prima facie evidence of the facts stated therein.

§ 2614. Persons before whom affidavits taken

(a) An affidavit to be used before a court, judge, or officer of the Canal Zone may be taken before any officer authorized to administer oaths.

(b) An affidavit taken in a State of the United States, to be used in the Canal Zone, may be taken before a commissioner appointed by the Governor of the Canal Zone to take affidavits in the State, or before any notary public in a State, or before any judge or clerk of a court of record having a seal.

(c) An affidavit taken in a foreign country to be used in the Canal Zone, may be taken before an ambassador, minister, consul, viceconsul, or consular agent of the United States, or before any judge of a court of record having a seal in the foreign country.

(d) When an affidavit is taken before a judge of a court in a State, or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that the judge is a member thereof, shall be certified by the clerk of the court, under the seal thereof.

(e) An affidavit may be taken before an officer of the armed forces as provided by section 725 of Title 4.

Subchapter III-Depositions and Discovery

§ 2641. Depositions and discovery generally

(a) Except as provided in this section, Rules 26-37 of the Federal Rules of Civil Procedure apply both to the district court and to the magistrates' courts in civil actions.

(b) For the purpose of taking depositions in the Canal Zone for use outside the Canal Zone, proceedings in aid thereof shall be had in the district court.

(c) In an action in a magistrate's court, a deposition may be taken outside the Canal Zone only upon an order of the magistrate's court, upon notice to the parties, granting leave to take the deposition. In proceedings under this subsection, references in Rules 26-37 and 45 of the Federal Rules of Civil Procedure to a notice to take a deposition shall be deemed to refer to an order of a magistrate's court granting leave to take a deposition.

An order of a magistrate's court under this subsection, or a commission or letters rogatory issued by a magistrate's court under Rule 28(b) of the Federal Rules of Civil Procedure, shall have attached thereto a certificate of the clerk of the district court, under the seal of the district court, to the effect that the person issuing the order, commission, or letters rogatory was an acting magistrate at the date of the order.

(d) Proceedings before action, pursuant to Rule 27 (a) of the Federal Rules of Civil Procedure, to perpetuate testimony regarding a matter which may be cognizable in either the district court or a magistrate's court may be brought only in the district court. A deposition so taken may be used as provided in Rule 27(a) (4) in an action subsequently brought in either the district court or a magistrate's court. § 2642. Depositions for use outside Canal Zone; Uniform For eign Depositions Act

(a) Whenever any mandate, writ, or commission is issued out of any court of record in any State of the United States or foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness or witnesses in the Canal Zone, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in the district court in the Canal Zone.

(b) This section shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those States which enact it.

(c) This section may be cited as the Uniform Foreign Depositions Act.

§ 2643. Depositions in foreign countries

Sections 1781 and 1785 of Title 28, United States Code, apply to commissions and letters rogatory issued by the district court and the magistrates' courts.

§ 2644. Subpoena of witness in foreign country; contempt

Sections 1783 and 1784 of Title 28, United States Code, apply to civil and criminal actions in the district court but not in the magistrates' courts.

Sec.

CHAPTER 107-PRESENTATION OF EVIDENCE

2681. Control of judge over presentation of evidence.

2682. Presence of parties.

2683. Exclusion of witnesses.

2684. Postponement for absence of evidence.

§ 2681. Control of judge over presentation of evidence

In civil actions, and in criminal actions except as otherwise provided by Title 6 of this Code or an applicable provision of Title 18 of the United States Code, the judge controls the conduct of the trial to the end that the evidence shall be presented honestly, expeditiously and in such form as to be readily understood, and in his discretion determines, among other things:

(1) in what order evidence shall be offered and witnesses shall be called and examined;

(2) how many counsel for a party may examine or crossexamine a witness;

(3) how many witnesses a party may reasonably call to testify to a material matter;

(4) whether to call witnesses of his own motion, and whether and to what extent to interrogate a witness by whomever called; (5) whether to exclude, of his own motion, evidence which would violate a privilege of a person who is neither a party nor the witness from whom the evidence is sought if the privilege has not been waived or otherwise terminated, or which would be excluded on appropriate objection by an adverse party;

(6) what reasonable restraints shall be imposed upon the examiner of a witness in order that the witness be not misled, intimidated, harassed or unduly disconcerted;

(7) to what extent and in what circumstances a party calling a witness shall be permitted, and a party not calling him shall be forbidden, to put to the witness questions suggesting the desired

answers;

(8) to what extent and in what circumstances a party crossexamining witness may be forbidden to examine him concerning material matter not inquired about on a previous examination by the judge or by an adverse party;

(9) whether or upon what condition a party may put questions or use any writing, object or other means for the purpose of reviving the memory of a witness;

(10) whether a witness in communicating admissible evidence may use as a substitute for oral testimony or in addition to it a writing, model, device or any other understandable means of communication, and whether a means so used may be admitted in evidence;

(11) whether counsel may use a writing, model or other device as a means of conveying a reasonably accurate understanding of his interpretation of admitted evidence;

(12) whether or upon what condition an adverse party shall upon demand made at the trial submit for inspection to the demanding party a writing or object found by the judge to be in the control of the adverse party and readily accessible and to constitute or contain evidence admissible against the adverse party; and

(13) whether or not an exhibit which has been received in evidence shall be available to the jury after its retirement to deliberate upon the verdict.

§ 2682. Presence of parties

Upon a trial, a witness may be heard only in the presence and subject to the examination of all the parties, if they choose to attend and examine.

§ 2683. Exclusion of witnesses

(a) In his discretion, on his own motion or on the request of a party, the judge may exclude from the courtroom any witness not at the time under examination, so that he may not hear the testimony of other witnesses. A party to the action or proceeding may not be so excluded; and if a corporation is a party, it is entitled to the presence of one of its officers, to be designated by its attorney.

(b) In a criminal action, the judge may also cause the witnesses to be kept separate and to be prevented from conversing with each other until they are examined.

§ 2684. Postponement for absence of evidence

A motion to postpone a trial on the ground of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it.

The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain. If the adverse party thereupon admits that the evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial may not be postponed.