Since a majority of the states and foreign countries follow the territorial concept of sovereignty as the principal basis for furnishing jurisdiction over a person, problems frequently arise involving the testimony of absent or non-resident witnesses. Often, the forum does not require the witness' physical presence, but only his testimony. This power to procure testimony from an absent or non-resident witness is fundamentally a judicial power of any sovereign and is restricted by a sovereign's territorial boundaries. In the absence of a treaty, convention, statute, or judicial authorization, a state may not send a representative outside of the state and into another state or country and there permit him to exercise his power to compel the absent or non-resident witness to testify. This would clearly interfere with the sovereignty of the sister state or foreign country. One may readily foresee a number of other jurisdictional problems arising in this respect and which have called for some practical solutions. A few of the other problems which frequently arise, besides procuring the testimony of absent or non-resident witnesses, are: serving documents on non-residents, extraditing an absent witness, obtaining information on, pleading and proving foreign law at the domestic forum. This article attempts to examine one of these interstate or international problems, viz., the different methods of procuring the testimony of absent or non-resident witnesses through the use of depositions, commissions, and letters rogatory in a Conflict of Laws case and the problems raised therein.
Walter A. Rafalko,
Depositions, Commissions, and Letters Rogatory in a Conflict of Laws Case,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol4/iss1/12