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  1. #1

    Default When Will the Prosecutor Subpoena a Witness to Testify at Trial

    My question involves criminal law for the state of: Texas

    A few months (I think June?) ago, I was at my mothers house where her and her now ex-boyfriend were involved in a domestic situation. I did not see what happened, but I heard yelling and saw the injuries to my mother. She called the police and her boyfriend fled the scene. He was later apprehended and charged with misdemeanor domestic assault. I believe it has been enhanced to a felony due to priors, but am unsure.

    When the police took down my witness statement, I simply told them to the effect of as follows: "I hear yelling. I did not personally see anybody hit anyone. I saw the cuts and bruises on my mother. She called the police. Boyfriend fled the scene."

    My mother recently received a letter about a possible court date (although it says she doesn't need to attend). I guess he's contesting the charges. I was wondering If I will have to attend the trial as a witness? Everything I have to say has already been put into my statement. Are some circumstances where I might still be called? I have nothing more to offer this case than what I said in my report. If I am needed, will I have to go to the arraignment, or will i only have to show up for trial? And furthermore, how will my notice be delivered? Hand delivered? Mail? Certified mail?

  2. #2
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    Default Re: Will I Be Called As Wittness

    it is impossible to guess whether you will be called as a witness or not. It may not even get that far as the defendant may end up with some sort of plea agreement. If they do proceed to trial, you might try contacting the prosecutor so you can have a bit of a heads up as to whether they are going to issue a subpoena for your attendance or not.

    a written statement such as the police report is not admissible in court, at least as far as your statement is concerned. It is considered hearsay evidence. If they need your statement to be entered into the prosecution, they will require your attendance. The defense does have a right to question you on your statement.

    You might consider calling the prosecutor in charge of the case and asking them that if this goes to trial will they be issuing a subpoena for your attendance. They are the only people that can really give you that answer.

  3. #3

    Default Re: Will I Be Called As Wittness

    Thanks for the reply. I always assumed a witness statement would be admissible in court. Thanks for clearing that up. Is it possible they will not need my statement? If the prosecution says they don't need it, can the defense still call me?

    Are you saying that I may not have to go to court if he makes a plea?

    Another quick question. I was told I might be called as a character witness? It this likely?

  4. #4
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    Default Re: Will I Be Called As Wittness

    I had to go to court lots of times as a witness back when I had my bar, they always sent the sheriff to my door to serve me the papers even though I was just a witness, they also can get something called a body attachment (according to my lawyer) on you if you try to avoid the sheriff, I did this a few times (avoid the server) just because the person I witnessed was a real nut job. but I never had them get the body attachment and that was in a stabbing case. this is how they serve in Maryland, but im sure many other states are the same.

  5. #5

    Default Re: Will I Be Called As Wittness

    Hand delivered is what I assumed. What happens if im not around to have it delivered? Will they Do the body attachment?

    Are wittnesses ALWAYS called to testify, or just on a needed basis?

  6. #6
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    Default Re: Will I Be Called As Wittness

    Quote Quoting Possiblewittness
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    Thanks for the reply. I always assumed a witness statement would be admissible in court. Thanks for clearing that up. Is it possible they will not need my statement? If the prosecution says they don't need it, can the defense still call me?
    Yes, the defense can subpoena you as a witness though I can't imagine that the defense would expect your testimony to help the guy who beat up your mother.



    Quote Quoting Possiblewittness
    View Post
    Are you saying that I may not have to go to court if he makes a plea?
    Yes.

    A plea eliminates a trial. No trial, no witnesses needed.

    Quote Quoting Possiblewittness
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    Another quick question. I was told I might be called as a character witness? It this likely?
    Not very. For the same reason I wrote earlier.

  7. #7
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    Default Re: Will I Be Called As Wittness

    body attachments are pretty rare from what I have seen,, like I said, I witnessed the stabbing of two people at my bar,, and they never bothered with the body attachment,, the sheriff came to my house twice that I know of, I did not answer the door,, the last time he parked outside the house for almost an hour but he left and that was the last a seen of him. I never was served and never went to court.

  8. #8
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    Default Re: Will I Be Called As Wittness

    Quote Quoting Possiblewittness
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    My mother recently received a letter about a possible court date (although it says she doesn't need to attend).
    That doesn't make any sense unless it's just an arraignment.

    But if it's a trial, it's possible that the ex can be acquitted if she doesn't testify that he beat her up.

  9. #9
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    Default Re: Will I Be Called As Wittness

    Quote Quoting Possiblewittness
    View Post
    Hand delivered is what I assumed. What happens if im not around to have it delivered? Will they Do the body attachment?

    Are wittnesses ALWAYS called to testify, or just on a needed basis?
    witnesses are not called unless they are placed on the witness list. not all witnesses are needed. It will depend on the needs of the prosecution or defense.


    to answer a prior question; this is what your state code says to what a subpoena may be issued for regarding a criminal matter:


    (a) A subpoena may summon one or more persons to appear:
    (1) before a court to testify in a criminal action at a specified term of the court or on a specified day; or
    (2) on a specified day:
    (A) before an examining court;
    (B) at a coroner's inquest;
    (C) before a grand jury;
    (D) at a habeas corpus hearing; or
    (E) in any other proceeding in which the person's testimony may be required in accordance with this code.



    (b) The person named in the subpoena to summon the person whose appearance is sought must be:
    (1) a peace officer; or
    (2) a least 18 years old and, at the time the subpoena is issued, not a participant in the proceeding for which the appearance is sought.
    (c) A person who is not a peace officer may not be compelled to accept the duty to execute a subpoena, but if he agrees in writing to accept that duty and neglects or refuses to serve or return the subpoena, he may be punished in accordance with Article 2.16 of this code.
    (d) A court or clerk issuing a subpoena shall sign the subpoena and indicate on it the date it was issued, but the subpoena need not be under seal.
    - See more at: http://codes.lp.findlaw.com/txstatut....uKNKAr5B.dpuf
    as to how a subpoena would be served:

    (a) A subpoena is served by:
    (1) reading the subpoena in the hearing of the witness;
    (2) delivering a copy of the subpoena to the witness;
    (3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or
    (4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness unless:
    (A) the applicant for the subpoena requests in writing that the subpoena not be served by certified mail; or
    (B) the proceeding for which the witness is being subpoenaed is set to begin within seven business days after the date the subpoena would be mailed.
    (b) The officer having the subpoena shall make due return thereof, showing the time and manner of service, if served under Subsection (a)(1) or (2) of this article, the acknowledgment of receipt, if served under Subsection (a)(3) of this article, or the return receipt, if served under Subsection (a)(4) of this article. If the subpoena is not served, the officer shall show in his return the cause of his failure to serve it. If receipt of an electronically transmitted subpoena is not acknowledged within a reasonable time or a mailed subpoena is returned undelivered, the officer shall use due diligence to locate and serve the witness. If the witness could not be found, the officer shall state the diligence he has used to find him, and what information he has as to the whereabouts of the witness.
    (c) A subpoena served under Subsection (a)(3) of this article must be accompanied by notice that an acknowledgment of receipt of the subpoena must be made in a manner enabling verification of the person acknowledging receipt.
    - See more at: http://codes.lp.findlaw.com/txstatut....bCEGr4EW.dpuf
    - - - Updated - - -

    Quote Quoting adjusterjack
    View Post
    That doesn't make any sense unless it's just an arraignment.

    But if it's a trial, it's possible that the ex can be acquitted if she doesn't testify that he beat her up.
    I would suspect it is not the trial but some preliminary activity. While it could be an arraignment, it could also be any of several pre-trial hearings. The victim is often not required for the pre-trial hearings.



    Most trials I have known of the victim was issued a subpoena when they were needed to attend.

    - - - Updated - - -

    to the use of the attachment process:


    When a witness who resides in the county of the prosecution has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to so appear, the State or the defendant shall be entitled to have an attachment issued forthwith for such witness. - See more at: http://codes.lp.findlaw.com/txstatutes/CR/1/24/24.12#sthash.l4Nva8Qy.dpuf
    so, if you fail to comply with a properly served subpoena, they can take you into custody.

  10. #10

    Default Re: Will I Be Called As Wittness

    Abjusterjack - I believe its for an arraignment. How many of these do they usually have before trial? I've heard of cases where the defendant has to go to 2 or 3 per-trial hearing before a trial is convened. Is this true?

    About the character witness... According to a mutual "friend", the ex is arguing self-defense. He's saying my mother has anger/alcohol issues and is prone to violence. He's apparently wanting to have me summoned to attest to this... I have no desire to testify against my mother in this. I told the police all I know. Even if she does have those issues, shes not the one being charged,

    Is there a chance he will plea out? Do most domestic cases go to trial?

    We just want this over.

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