General Witness Information for Defendant's
Relatives in Criminal Cases
by Glen R. Graham, Attorney at Law
A lawyer who represents the defendant in a criminal case usually does not and can not represent the witness who may be a relative of the defendant who may testify against the defendant because there is a conflict in interest between the defendant who is being prosecuted and the witness-relative who may testify against the defendant. It would always be best for a witness-relative who may be subpoenaed to testify against the defendant to contact an "independent" lawyer, one not involved in the case, to ask about what their options are in regard to testifying in a criminal case.
A defendant should say nothing to a witness which may be a basis for the court to revoke the defendant’s bond, or which may be interpreted as threatening or harassing a witness. A defendant should be aware that any statements made to the witness or to the lawyer in front of the witness are capable of being repeated in court. For instance, if a witness is forced to come to court to testify, a prosecutor may ask the witness about any statements which the defendant made to the witness and a witness may be compelled to testify as to those statements. A witness against the defendant or potential witness should never be present during the private confidential communications between the defense attorney and the defendant because those conversations would not be confidential if the witness is asked a question about that conversation and the witness was present during those communications between the attorney and the defendant.
A defendant should never orally suggest to a witness that they do not appear in court because this could be interpreted as threatening a witness or possible witness tampering. Additionally, it could be obstruction of justice or witness tampering for a defendant to instruct a witness not to appear in court. The defendant’s lawyer is likewise prohibited from instructing a witness against the defendant not to appear in court.
The best thing for a witness against the defendant to do is to contact another criminal defense lawyer by telephone and ask about what their options are in such a case.
If the witness is "served" with a subpoena, then the witness must appear in court or a warrant could be issued for the arrest of the witness.
If a witness does not receive or get served with a subpoena because they moved, then how would the witness know to appear in court and no warrant would be issued unless there was proof that the witness received the subpoena. NOTE: The statutes are unclear but there is an interpretation that service of a subpoena on a relative at the witness residence or anyone at the witness residence may arguably be considered good service. But, if party served at residence immediately informs server at time that witness has previously moved then service may not be valid. A prosecutor may telephone the witness at the last known telephone number and if the witness admits to receiving a subpoena but failed to appear in court then the prosecutor can file an application with the court seeking a material witness warrant for the witness (normally only felony cases). Additionally, if the prosecutor can prove that the witness is purposefully avoiding service, such as the prosecutor talks to the witness by phone or a police officer talks to the witness or there is evidence that the witness is purposefully avoiding service, then the prosecutor can file an application with the court seeking a material witness warrant in anticipation that the witness will not appear in court because the witness is purposefully avoiding the service of a subpoena. There is a statute that provides that "upon probable cause" a police office may summarily arrest a witness who indicates that they will not appear in court but only on FELONY cases. See: 22 OS 720
It is highly unlikely that a prosecutor will dismiss a case just because the witness requests that the case be dismissed, but if there is not enough evidence then the prosecutor has no choice but to dismiss the case. If there are witness statements made to a police officer, then the witness can be prosecuted if they appear in court and say their previous statement was not true (filing false police report or perjury).
One questionable technique are prosecution/police threats to have minor children removed or create a DHS investigation. This behavior could be questioned.
A defendant should say nothing to a witness which may be a basis for the court to revoke the defendant’s bond, or which may be interpreted as threatening or harassing a witness. A defendant should be aware that any statements made to the witness or to the lawyer in front of the witness are capable of being repeated in court. For instance, if a witness is forced to come to court to testify, a prosecutor may ask the witness about any statements which the defendant made to the witness and a witness may be compelled to testify as to those statements. A witness against the defendant or potential witness should never be present during the private confidential communications between the defense attorney and the defendant because those conversations would not be confidential if the witness is asked a question about that conversation and the witness was present during those communications between the attorney and the defendant.
A defendant should never orally suggest to a witness that they do not appear in court because this could be interpreted as threatening a witness or possible witness tampering. Additionally, it could be obstruction of justice or witness tampering for a defendant to instruct a witness not to appear in court. The defendant’s lawyer is likewise prohibited from instructing a witness against the defendant not to appear in court.
The best thing for a witness against the defendant to do is to contact another criminal defense lawyer by telephone and ask about what their options are in such a case.
If the witness is "served" with a subpoena, then the witness must appear in court or a warrant could be issued for the arrest of the witness.
If a witness does not receive or get served with a subpoena because they moved, then how would the witness know to appear in court and no warrant would be issued unless there was proof that the witness received the subpoena. NOTE: The statutes are unclear but there is an interpretation that service of a subpoena on a relative at the witness residence or anyone at the witness residence may arguably be considered good service. But, if party served at residence immediately informs server at time that witness has previously moved then service may not be valid. A prosecutor may telephone the witness at the last known telephone number and if the witness admits to receiving a subpoena but failed to appear in court then the prosecutor can file an application with the court seeking a material witness warrant for the witness (normally only felony cases). Additionally, if the prosecutor can prove that the witness is purposefully avoiding service, such as the prosecutor talks to the witness by phone or a police officer talks to the witness or there is evidence that the witness is purposefully avoiding service, then the prosecutor can file an application with the court seeking a material witness warrant in anticipation that the witness will not appear in court because the witness is purposefully avoiding the service of a subpoena. There is a statute that provides that "upon probable cause" a police office may summarily arrest a witness who indicates that they will not appear in court but only on FELONY cases. See: 22 OS 720
It is highly unlikely that a prosecutor will dismiss a case just because the witness requests that the case be dismissed, but if there is not enough evidence then the prosecutor has no choice but to dismiss the case. If there are witness statements made to a police officer, then the witness can be prosecuted if they appear in court and say their previous statement was not true (filing false police report or perjury).
One questionable technique are prosecution/police threats to have minor children removed or create a DHS investigation. This behavior could be questioned.
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