What happens to a witness (or victim) if they fail to appear for court?

One question I am often asked, but I am reluctant to answer is, what will happen to a witness (or alleged victim) if the witness fails to show up for court?  I am most frequently asked this question by a witness who is the wife or girlfriend of a defendant in a domestic battery or domestic assault case.  I suspect they are asking this because they hope that their absence from court will result in a dismissal of the defendant’s case.

The reason I am reluctant to answer this question is because I do not want my answer to be interpreted as me communicating to the witness to not come to court.  It is a felony in Idaho for anyone to influence a witness to testify in any other way than truthfully.

It is true that failure of a witness to appear in court can sometimes result in dismissal of the defendant’s case. This is because a defendant has a right to confront the witnesses who will testify against the defendant.  If the witness does not come to trial, and the state has no other evidence against the defendant, the case may be dismissed.  Dismissals are not automatic though, and the State can request a continuance of a trial if a witness that they properly subpoenaed failed to appear for court.

On the other hand, if a witness fails to appear in court there could be consequences for the witness.  There will only be consequences for the witness if the witness has been properly served with a subpoena.  To properly subpoena a witness, the prosecuting attorney must have the subpoena personally served on the witness.  Once a witness has been properly served by subpoena, the witness is legally obligated to come to court.  If the witness fails to appear for court, the prosecuting attorney can request a warrant be issued for the arrest of the witness, and have the witness taken into custody and remain in custody until the day of the trial.

If the witness was never served with a subpoena, but simply asked to come to court, the witness will not be legally obligated to come to court.  If a witness has been asked to come to court, it could be for the witness’s own benefit.  For example, if there is a no contact order in place preventing the witness and defendant from having contact with one another, the witness’s presence may be needed so that the court can get the witness’s desires when it comes to quashing or modifying the no contact order.  If the witness does not show up, the court may refuse to modify or quash the no contact order without the input from the protected party.

Another example of when it may benefit a reluctant witness to show up to court is when the State wishes to communicate a resolution of the case to the witness.  If a prosecuting attorney learns that witness is reluctant to testify, or that a witness desires a certain type of resolution, the prosecuting attorney may very well resolve the case consistent with the witness’s desires.

In summary, if a witness fails to appear for court it could theoretically help the Defendant’s case, but the consequences may off set any benefit obtained.  Further, a witness’s presence in court may actually help the Defendant’s case where the witness’s absence would have hurt it.

Boise, Idaho Criminal Defense Attorney

Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.

Ask Craig to review your case.

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