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Can A Witness Be Arrested If They Don’t Show Up In A Criminal Case?

Posted by Ronald D. Hedding, ESQ. | Oct 12, 2018

In criminal cases, in order to prove the charges, the prosecutors usually have to call witnesses either at a preliminary hearing, a motion a trial – also, the defense is entitled to call witnesses at the right proceedings.

Witness Subpoena in Los Angeles Criminal Cases

In order to call a witness, typically you either ask that person to be there or the best way to do it is to issue a subpoena and have the subpoena served on them – basically ordering that person to come into court.

It should be noted the defense attorney has the subpoena power just like the prosecutors have the subpoena power in a criminal case in Los Angeles, as long as the case is pending and you need that witness to testify as a witness in the case and they can bring forth some material evidence that helps one side or the other.

So, as far as whether somebody can be arrested, there are certain circumstances that have to exist in order for them to be arrested for not showing up to court.

For example, let's say there's a preliminary hearing in a felony criminal case pending in Los Angeles. The prosecutors issue a subpoena for a witness. They serve it on them – in other words, they send out a police officer.

The police officer put it in their hand and says, you need to come to court on this date. The subpoena is real clear about when the person has to come to court and the person decides not to come. Maybe they don't want to come because it's their husband who is in trouble, and now they don't want to prosecute the husband because the husband is the sole supporter of the family and they've had a change of heart.

Prosecutor Seeking a Continuance If Witness Doesn't Show Up

If they don't show up at the preliminary hearing, the prosecutor can ask to continue the case and say, I have a subpoena issued on this person and then they'd show the judge the proof of service that shows the person was served with the subpoena, who served it and it was done appropriately, and then they'd have to ask the judge to issue a body attachment for that particular witness.

The judge would do it as long as all the criteria were met and then with that body attachment, they could send law enforcement out to take the person into custody and bring them into court or hold them until the court proceeding and then force them to testify against the individual.

The judge would tell them you need to testify. If they try to plead the Fifth, the judge could say no, you don't have the right to plead the fifth because you're not necessarily going to say anything that's incriminating yourself.

You just don't want to testify. So, that's the right way to do it. Sometimes the prosecutors try to do it the lazy way where they either call the person to tell them they have to appear or send a letter in the mail telling them they have to appear.

This is not an official way to do it and if that person who got called or was sent a letter in the mail that doesn't show up, the prosecutors cannot issue a body attachment and cannot arrest that person because they didn't do it the right way with a subpoena in their hands, so they're clear that they have to show up.

Seeking Body Attachment For a Arrest and Brought to Court

So, the answer is yes. A person can be arrested for not showing up to a criminal case as long as whoever the party is who issued the subpoena does it the right way. It's the same for the defense.

The defense hits somebody with a subpoena the right way, serves them with it. They too can ask the court to issue a body attachment and get that person arrested and brought into court to testify in the criminal case.

The next question is, are the prosecutors really going to go start arresting their witnesses or even victims in criminal cases and the answer is, sometimes they do and sometimes they don't. There's really no clear, defined answer for that.

In my view, having done this twenty-five years, if it's a serious enough case where they really want to get this defendant because they perceive them as a bad danger to the public or even the victim in the case, they will arrest witnesses in order to get the defendant.

Why? Because they feel like that is the best way to serve the public by making sure this person gets convicted of the crime and punished for what they did. Another thing is, they have to be able to find the person that they're trying to issue the subpoena on.

If they can't find the person then there's really nothing you can do about that. I've had defense cases and I've seen prosecution cases where you just can't find those witnesses. It's not any body's fault. A lot of times the witnesses are intentionally evading the police because they don't want to be served with the subpoena, and even the defense — the defense is trying to get witnesses in.

We've had cases where my investigator could not find somebody. That person didn't have an address. They did not want to be served. They did not want to be part of the case. So, yes, you can get him arrested if you can serve him. But, if you can't serve him, that puts you in a real difficult position in trying to get that particular witness into court.

About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.