Subpoenaing Witnesses In Criminal Cases In Los Angeles
If you've practiced criminal defense law enough – and I have for twenty-five years – working for a judge, the district attorney's office, and having my criminal defense practice since 1994 – you're going to come across subpoenaing witness issues, and the question becomes in a lot of these cases – and I have people calling me all the time – my clients talk to me about it, what is an effective way to get a witness into court and be able to make that witness testify.
The answer is that you need to get a valid subpoena served on them. So, there has to be a criminal case pending. You can't start shooting subpoenas until there's a case to attach the subpoena to. Many people are trying to subpoena witnesses, and I tell them there's no case yet. Nothing has been filed against you yet.
Case Must Be Filed and Have a Court Date
You can't start subpoenaing witnesses until someone actually files a case. We have a case number and a court date. Then, we can start making some moves regarding subpoenaing witnesses.
You do it because somebody who is not a defendant in the case has to serve the person. In other words, take it and put it in their hand. You can use a private investigator.
You can use the attorney's staff or a process server. Basically, once they've served somebody with the subpoena, which obviously has to be filled out correctly with the court date and all the correct information, then that person is under an obligation to come to court.
If they don't come to court, the defense attorney can show they subpoenaed the person. Here's the proof of service sworn under penalty of perjury—it's filled out correctly. A process server served it on them, and now look, they're not here in court.
Then, the attorney can ask the court to issue a body attachment for that particular witness based on the valid subpoena. Now, we can try to get the sheriff or LAPD to get their hands on the people, take them into custody, and bring them into court for the next court date based on this body attachment.
Body Attachment
So, that's one way to handle things. The prosecutors and defense have problems with witnesses all the time.
Even if the prosecutors have a valid subpoena and get a body attachment, the police can't find the person. There's no way to get them in there, and that's just too bad.
So, there are ways to do things, but many times, if witnesses have left the state or country or are just hiding and you can't find them, there's not much you can do about it except go through the process and try to find them.
Many times, people will call me and say that somebody got a subpoena in the mail from the prosecutors, and they want to know if that's a valid service, and the answer is no, it's not a valid service. I never tell anybody, obviously, not to go to court because that would be inappropriate.
But, by the same token, if they're sending stuff in the mail or dropping it off at somebody's house without actually serving it on them, that is not an effective way to serve a subpoena, and that prosecutor – who then tries to go in and get a body attachment issued against that particular witness – the judge is going to look at them and say, let me see your subpoena and let me see your proof of service.
The judge will only issue a body attachment for that witness if they have proof of service showing the person was personally served.
But if they have an adequate subpoena with appropriate service on the individual, they will now issue a body attachment. The prosecutors will send the police to that person's house, job, or wherever. The police will take them into custody if the prosecutors want them to testify in a criminal case bad enough, and they will use that subpoena to get them and make them come in.
Once a person gets in there, regarding how they testify, what they say, and how they answer the question –nobody can control that, but with a valid subpoena issued on somebody, you can try to get that person into court. It's just a matter of making them come into court through a body attachment or telling them they need to go into court.
Another way I see people get around having to subpoena somebody is if you have a witness in court live, you can say to the judge, Your Honor, I want this witness ordered back, and if the judge says okay and orders a person back – Ma'am or Sir, you're requested to come back on such-and-such date at this time, do you understand?
Yes. Then, you don't need to subpoena the person. You've got the court ordering them to come back. Now, if they don't come back based on the court's order, you can still issue a body attachment – either the defense can do that, or the prosecutors can do that.
So, this subpoena stuff is tricky, and it spins on the facts of a particular case, what's going on in the case, what type of service you have on the witness, and what kind of cooperation you have from the witness.
So, if you have a subpoena issue, you're going to want to get a criminal defense attorney who knows how to handle subpoenaing witnesses, to do it the right way to get the witness in there so that you can get the testimony in that you need, either at a preliminary hearing or in front of a jury.
