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 own 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.
Obviously, 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 out until actually there's a case to attach the subpoena to. A lot of people are trying to subpoena witnesses and I tell them, well 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 we have a court date. Then we can start making some moves regarding subpoenaing witness.
The way you do it is, 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 you can use a process server, and basically, once they've served somebody with the subpoena and the subpoena obviously has to be filled out the right way 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, then the defense attorney can show they subpoenaed the person – here's the proof of service sworn under penalty of perjury – it's filled out right.
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 and 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 the prosecutors – they have a valid subpoena, they get a body attachment and the police can't find the person. Now there's no way to get them in there and that's just too bad. So, there are ways to do things, but a lot of times if witnesses have left the state or country, or just hiding and you can't find them, there's really not much you can do about it except go through the process and try to find them.
A lot of times people will call me and say, somebody got a subpoena in the mail from the prosecutors and they want to know if that's valid service, and the answer is no, it's not 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.
If they don't have a proper proof of service showing the person was personally served, the judge is not going to issue a body attachment for that particular witness. But if they do have a proper subpoena with proper service on the individual, now they will issue a body attachment and now the prosecutors are going to send the police to that person's house, job or wherever, and the police are going to take them into custody if the prosecutors want them to testify in a criminal case bad enough and they're going to use that subpoena to get them and make them come in.
Once a person gets in there, as far as how they testify and what they say and how they answer the question – obviously, 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 by way of a body attachment or telling them they need to come 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 ordered 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, now you can still issue a body attachment – either the defense can do that or the prosecutors can do that.
Consult with an Experienced Lawyer
So, this subpoena stuff is a little bit tricky and it really 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 type of cooperation you have from the witness.
So, if you have a subpoena issue, obviously 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.
For more information on Subpoenaing Witnesses In A Criminal Case, a free initial consultation is your best step. Get the information and legal answers you are seeking by calling (213) 542-0979 today.
