Prosecution Witness Doesn't Show Up In A Criminal Case
This happens all the time. People are arrested, they'll fight their case. Their defense attorney will set the case for a preliminary hearing in a felony or set it for trial in a misdemeanor, and the prosecutors need their witnesses.
Usually, in a preliminary hearing, there are some angles the prosecutors can use when their witnesses don't show up.
One thing they can do is do what's called a Proposition 115 Preliminary Hearing. This allows them, under the right circumstances, to call the police officer or officers to testify to what their witnesses said at the time they made their statements and then use that evidence as though the witness was there and use that evidence to try to hold the person to answer and get them into the trial court in Los Angeles.
Prosecutors sometimes do that. Sometimes, they don't like to do that, and sometimes, they don't feel comfortable with it. It depends on the type of case. Sometimes, they want their witnesses there. If a witness doesn't show up, they'll have the judge issue a body attachment and have the police grab them and bring them in. That's another option they can utilize.
Other times, I've seen them when they don't have their witnesses, their witnesses haven't been cooperative, and the case is questionable—they'll just dismiss the case.
If the witness doesn't care about the case enough, they're giving us trouble. It's a questionable case in the first place—you know what? We're just going to get rid of it.
So, it depends on the circumstances. It depends on the evidence in the case. It depends on how effectively your criminal defense attorney can deal with a situation where a witness doesn't appear.
Case Dismissal by Los Angeles Prosecutor If Witnesses Don't Show
One thing I've been able to do, for example, in a felony case in the Los Angeles courts, if the witnesses don't show up, they're usually not just going to dismiss the case – especially if it's serious enough – but, I have used that to be able to get a better deal for my client. I'll say, listen, your witnesses aren't here.
You can do a Prop 115 Prelim, but you don't have any case if your witnesses don't appear at trial.
You could try to get my client for something; otherwise, you could lose everything. And that's a good argument sometimes.
Sometimes, the defense has to take a little bit of a risk kind of and say wait a minute, they may get those witnesses, and if they do, my client could be looking at a lot of time and a lot of bad charges against him, so now is the time strike. Now is the time to try to work out a deal with the prosecutors and the prosecutor's alleged victim.
Their witnesses aren't cooperating. It's time to cut bait and move on to another case.
Of course, it has to be the right case to do that, and that's a strategic decision that's discussed between the client and the attorney. The client then makes an informed decision about what to do if the prosecutor's witnesses don't show up in a criminal case.
There are all kinds of reasons they don't show up. Sometimes, people need to be more active, and sometimes, they have other things to do. If the prosecutors don't properly serve the person, put a subpoena in their hands.
Sometimes people are smart enough to realize, or they talk to somebody about it and say hey if you didn't get properly served, then you don't have to show up. So, witnesses don't show up to a case for all sorts of reasons.
Los Angeles Prosecutor Request for a Continuance
The next question, though, after they don't show up is, what will the prosecutors do? Sometimes, the prosecutors can request a continuance and say, we need these witnesses, Your Honor.
We need some time—a couple of days, a week, a month. We need to find these witnesses, and the judge will look at the age of the case and probably ask the prosecutor some questions.
Could you tell me what the heck you did to try to get the witness into court? If you didn't do anything, didn't try to find them, and didn't try to serve the subpoena on them, you want me now to delay the case, keep this case over the criminal defendant's head – I don't think so. So, of course, that's a defense attorney's argument to the judge.
So, it depends on the circumstances, but unfortunately, many times, judges will give the prosecutor time to try to find witnesses, but within reason.
Once the defense starts to crow about it and begin to bring up rights being violated, that's when the judge is going to start to put the pedal to the metal on the prosecutor and say look, if you can't get your witnesses here, you're going to have to dismiss the case.
So, either get them here or come up with other evidence, but I will only continue this case for a while.
There are rules, laws, and case law, so if you have a case with witness issues, come in. We'll review the case, determine the best strategy for defending you, and get you the best possible result in a sometimes tough criminal defense system.
