Under What Circumstances Will A Body Attachment Be Issued for A Witness In A Criminal Case?
This issue arises frequently in criminal defense. Witnesses often worry about having a body attachment issued against them or someone else related to their case.
We see this happening when the prosecutor effectively serves a witness with a subpoena in a case—meaning puts it in their hands—or has an investigator put it in their hands—or has the police put it in their hands—and tells them they have to come to court.
A subpoena is properly filled out, and whoever gives it to them does a Proof of Service showing they gave it to them on such and such date. It had all the information, and now the case comes. The prosecutor or defense attorney—whoever it is that subpoenaed that witness—is looking for them, and they don't show up.
Now, the individuals who subpoenaed that witness can say, Your Honor, I subpoenaed this person. I have a valid proof of service, but they're not here. Could you send me a body attachment for that particular witness?
The effect of that is that somebody can get law enforcement to execute that body attachment, take the person into custody, bring them into court, and make them testify.
A lot of people think I'm not going to testify. Still, once you get ordered to testify by the judge and try to ramble about a Fifth Amendment right, they say you don't have a Fifth Amendment right because you won't incriminate yourself. You don't want to testify.
Once that happens to you, and they hold you in contempt of court and threaten to put you in jail, suddenly, people start talking under those circumstances.
Domestic Violence Cases
A lot of times where I see this body attachment issue come up is in domestic violence cases. A husband and wife get into a fight. The wife loses the battle. The husband is arrested, and now there's a preliminary hearing coming up, and the prosecutors want the wife to testify.
Now they have to try to serve her, and if they just put something in the mail or call the wife up, that's not effective service. So, if they now go to court and say, we called the wife, she's not here. We told her to come. She heard what we said. The judge is going to say where your Proof of Service is.
You know that you have to personally serve as a witness in a criminal case in Los Angeles. They're not going to issue a body attachment, and they're going to have to try to serve that person. But if they do serve them with a subpoena and the person doesn't show up, the prosecutors can issue a body attachment and have the police arrest the person.
A lot of times in the domestic violence scenario, what I see them do is they will issue and hold a body attachment. That way, the subpoena is still good, and the body attachment is issued, but they don't have some law enforcement officer. If they come in contact with the poor wife, she won't get arrested.
But the investigating officer can go out there and tell the wife, what's going on? Why aren't you coming? If they don't like their answer, then they can take them into custody and bring them into court based on the body attachment that has been issued.
They don't issue body attachments in every case. The prosecutors have discretion when it comes to domestic violence cases or other cases, whether they want to issue a body attachment or just let it go—the fact that the witness didn't show up.
Defense attorneys can also get body attachments issued if they have witnesses and want to sue those witnesses.
Criminal cases are not easy when it comes to witnesses because sometimes witnesses don't like to cooperate. They don't want to come to court.
They evade being served. So, the body attachment is one effective way, but you can't always get the person with it because if you can't find them, then there can be all the body attachments the prosecutor wants, but with no witness to be found, it doesn't really do him any good to have one.
So, it's an effective tool. If you can find the witness, it's an effective tool if you properly serve the person, which they don't always do. It's something that's used a lot in criminal defense by both the prosecution and defense.
If you have a question regarding a body attachment—how it works, how some things work with witnesses in criminal cases—and you need a criminal defense attorney, give me a call.
We'll sit down and go over it. It will all be protected by the attorney-client privilege, and we'll figure out what the best moves are for you. The key, though, is to be careful. You don't want to do or say anything to try to make a witness not come to a trial or a preliminary hearing because that's going to be a further charge against you and will make your situation worse.
