This issue comes up all the time in criminal defense. Witnesses are worried about having a body attachment issued against them or somebody else related to their case. Where we see this coming up is where the prosecutor effectively served a witness with a subpoena in a case – meaning put it in their hands – or have an investigator put it in their hands or have the police put it in their hands – and tell them they have to come to court.
Subpoena a Witness
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 that subpoenaed that witness can say, Your Honor, I subpoenaed this person. I have a valid Proof of Service and they're not here. I need a body attachment issued for that particular witness.
Really the effect of that is, that means that somebody can go 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, but once you get ordered to testify by the judge and you try to ramble about a Fifth Amendment right and they say you don't have a Fifth Amendment right because you're not going to incriminate yourself. You just don't want to testify.
Once that happens to you and they hold you in contempt of court and they threaten to put you in jail, all of a sudden 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 in a fight. The wife loses the fight. 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 go try and serve her. 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 and now she's not here. We told her to come. She heard what we said. The judge is going to say where's your Proof of Service.
You have to personally serve a witness in a criminal case in Los Angeles, you know that. 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, 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, the body attachment is issued, but they don't have some law enforcement officer if they came in contact with the poor wife, she's not going to 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 just take them into custody and bring them into court based on that body attachment that has been issued.
They don't issue body attachments in every case. The prosecutors really have the 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 get body attachments issued as well if they have witnesses and they want to sue those witnesses as well.
So, criminal cases are not that easy when it comes to witnesses, because witnesses don't like to cooperate sometimes. 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 a body attachment.
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 do all the time and it's something that's used in criminal defense a lot by both the prosecution and defense as well.
Review Your Case With a Criminal Lawyer
If you've got 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 because 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 is going to make your situation worse.