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The Missing Witness: What Happens When a State Witness Doesn't Appear at a Criminal Trial?

Posted by Kara Hoopis Manosh | Sep 20, 2023 | 0 Comments

Criminal trials are supposed to be meticulously orchestrated events, and the presence of witnesses, especially those called by the prosecution, is essential for the pursuit of justice. But what occurs when a state witness fails to appear in court to testify? There are several potential consequences and legal procedures that come into play when a witness goes missing in a criminal trial.

1. Delay or Continuance:

If a state witness does not appear at the scheduled trial, the court may grant a delay or continuance. This postponement allows the prosecution time to locate and secure the witness's presence. The court typically prefers to hear from all necessary witnesses before proceeding with the trial.  Your lawyer should be ready to object to any such delay or continuance. 

2. Subpoenas and Witness Orders:

In many cases, witnesses are served with subpoenas or witness orders compelling their appearance in court. Failure to comply with a legally issued subpoena can result in legal consequences, including contempt of court charges.

3. Bench Warrants:

If a witness willfully refuses to appear, the court may issue a bench warrant for their arrest. This is a legal order for law enforcement to apprehend the missing witness and bring them to court. Bench warrants are typically issued in situations where the witness's testimony is critical to the case.

4. Adjournment or Mistrial:

If repeated attempts to secure the witness's presence fail, the court may adjourn the trial or declare a mistrial. This decision is made at the discretion of the judge and depends on the importance of the witness's testimony to the case.

5. Evidence and Testimony Evaluation:

In some instances, if a state witness is unavailable, the court may consider alternative options. This can include the admission of prior statements made by the missing witness into evidence or allowing other witnesses to testify about the missing witness's statements if they are considered reliable.

6. Confrontation Clause Consideration:

The Sixth Amendment to the United States Constitution guarantees a defendant's right to confront witnesses against them. If a state witness is unavailable due to factors beyond the defendant's control, such as illness or death, the court may consider whether allowing the admission of the witness's prior statements complies with the defendant's right to confrontation.

7. Prosecution's Duty:

It is primarily the responsibility of the prosecution to ensure that its witnesses appear at trial. Failure to do so can weaken the prosecution's case and potentially lead to dismissals of the charges or not guilty verdicts because of a failure to prove their case.  

8. Witness Protection Programs:

In some cases, witnesses may be reluctant to testify due to concerns for their safety. The state may have witness protection programs in place to address such concerns and ensure the safety of witnesses who cooperate with law enforcement.

Conclusion: The Impact of Missing Witnesses

When a state witness fails to appear at a criminal trial, it can disrupt the proceedings, delay justice, and affect the trial's outcome. The defense attorney must carefully navigate the situation, ensuring that the defendant's right to a fair trial is upheld while addressing the absence of critical witnesses. Every time a prosecutor requests a continuance, the defense attorney should be prepared to object and raise every relevant constitutional right unnecessary delay of a trial.  Ultimately, the steps taken in response to a missing witness depend on the circumstances, the witness's importance to the case, and the court's determination of how best to proceed.  

About the Author

Kara Hoopis Manosh

Attorney Manosh has dedicated her entire career to defending the rights of the criminally accused. She has handled thousands of cases, appearing in every courthouse in the State of Rhode Island.


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