What Happens If The Prosecution’s Witnesses Don’t Show Up In A Criminal Case?
This actually 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’s 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 just 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 don’t always do that. Sometimes they don’t like to do that. 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 go 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 and their witnesses haven’t been cooperative and it’s a questionable case – 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 the case.
So, it depends on the circumstances. It depends on the evidence in the case. It depends on how effectively your criminal defense attorney knows how to deal with a situation where a witness doesn’t show up. 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. Fine, you can do a Prop 115 Prelim, but if your witnesses also don’t show up at trial, then you don’t have any case. You might as well try to get my client for something, otherwise you could lose everything. And that’s a good argument sometimes. Sometimes and defense has to kind of take a little bit of a risk 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 prosecutor’s alleged victim. Their witnesses aren’t cooperating. It’s time to cut bait and move on to another case.
So, of course, it has to be the right case to do that and that’s a strategic decision that’s talked about between the client and the attorney, and then make an informed decision as to what they’re going to do if the prosecutor’s witnesses don’t show up in a criminal case. There’re all kinds of reasons they don’t show up. Sometimes people are lazy, sometimes people have other things to do. If the prosecutors don’t properly serve the person – put a subpoena right in their hand – sometimes people are smart enough to realize or they talked to somebody about it and say hey, if you didn’t get properly serve, then you don’t have to show up. So, there’s all sorts of reasons that witnesses don’t show up to a case.
The next question though after they don’t show up is, what are the prosecutors going to do? Sometimes the prosecutors can request a continuance and say, we need these witnesses Your Honor. We need some time. We need a couple of days. We need a week. We need a month. We need to find these witnesses and the judge is going to look at the age of the case and is probably going to ask some questions to the prosecutor. What the heck did you do to try to get the witness into court? If you didn’t do anything, if you didn’t try to go find them and you 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, a lot of times judges will give the prosecutor time to try to find witnesses, but within reason. Once the defense starts to squawk about it and start 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 some other evidence, but I’m not going to continue this case forever.
There’re rules; there’s law; there’s case law, so if you have a case where there’re witness issues, come in. We’ll sit down, we’ll go over it, we’ll figure out the best strategy on how to defend you and get you the best possible result in a sometimes-tough criminal defense system.
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