Criminal Defense

What If a Witness or Victim Fails to Appear?

September 13, 2022 by Madison Ferguson in Criminal Defense  
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Failing to Appear

If a witness is issued a subpoena but does not show up to testify, police may issue an arrest. If a witness shows up in court and refuses to testify, they have broken a court order and could be fined or put in jail.

Subpoenas are court orders for witnesses issued by a Judge, prosecutor, or defense counsel. Subpoenas must be served personally and signed by the witness. Subpoenas can also mandate the production of books, papers, documents, and records. If the subpoena was violated, the witness might be arrested.

When someone disrespects another person, they can face criminal and civil penalties. It depends on what the court’s goal is. A reluctance to testify is termed civil contempt. However, even civil disobedience is treated as a form of quasi-crime. That indicates that a person is entitled to specific constitutional processes. For example, the witness has the right to speak with an attorney. A reluctance to testify can likewise be construed as criminal contempt under Penal Code 166. Contempt of court is a municipal infraction.

Under Penal Code 166(a)(6), it constitutes contempt of court to refuse to be sworn as a witness illegally or refuse to answer a critical question.

The following must be included in every criminal contempt order:

  • An attorney represented the witness.
  • Court judgment on the claim of refusal to testify.
  • Underlying circumstances for refusal to testify.

Consequences for Failing to Appear

If a witness issued with a subpoena fails to appear in court, that is considered contempt. In California, the two most frequent instances in which a witness may be held in contempt of court are:

Generally, criminal courts utilize their contempt authority to ensure that witnesses and other parties comply with their orders and that their courts operate orderly. If not, nobody would take testimony seriously. The judge may swiftly impose sanctions under CCP1218 against the witness in such cases. The judge has the choice to impose any of the following sanctions on a witness who is found to be in contempt:

  • Five days in jail
  • A $1,000 fine

If a witness does not want to testify, the court may issue an order to hold them in custody until the case is resolved. Those who have been the victims of sexual assault or domestic abuse and choose not to testify are again excluded from this provision.
There may be no case against the accused if the state has no further proof. Also, a defendant’s case may be thrown out if a crucial witness fails to attend court. This is so because it is the defendant’s constitutionally protected right to cross-examine all witnesses against him.

Valid Reasons for Failure to Appear

There are specific scenarios in which you may potentially be permitted to decline a subpoena to testify. Suppose you make up your mind about getting out of your subpoena for any reason. To avoid appearing in court and providing testimony, you should contact the prosecutor or defense attorney who served you with the subpoena. Talk to them and be forthright about why you can’t attend court in person. Examples of why a person may fail to appear in court include:

  • Self-incrimination
  • Privilege: Attorney-client privilege shields a witness from having to testify on attorney-client communications. Doctor-patient confidentiality prohibits the disclosure of a patient’s private medical information in court without the patient’s permission. A spouse is protected from having to testify about contacts with the other spouse during the marriage by the marital communications privilege.
  • Urgent medical or family matters
  • Didn’t receive a subpoena

Remember that you can still be found guilty of contempt of court if you disregard the subpoena, even if you have one of these justifications. Therefore, if you have been subpoenaed and do not wish to testify, you should contact an experienced criminal defense attorney to see whether any of these protections apply to you; otherwise, you might risk jail time if you fail to appear.

The prosecution may ask for a trial postponement if a crucial state witness does not show up to testify. The state must have previously served the witness with a subpoena before the court can approve the request.

Related Article: What Happens If You Forget Your Court Date In California?

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December 3, 2019
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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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