Does the witness or the officer have to appear in court for my case?

Any person charged with a criminal offense, which includes traffic offenses, has a Constitutional right to confront witnesses against them. So does that mean if the officer that wrote the ticket, or made the arrest, or the alleged victim of the offense, does not appear in court, that the case is dismissed? 

The answer, as in many areas of law, is that it depends. A defendant's first appearance in court is their arraignment, where they enter a guilty, not guilty, or nolo contendere plea. This court appearance is not a trial date and the State is not required to have witnesses present for trial. So people who go to court for their traffic ticket and expect it to be dismissed because the officer is not present in court are almost always incorrect. If that person pleads not guilty and requests a trial at a different date, and the officer is not present, the Judge might dismiss the case if the officer has provided any reason in advance as to why he/she cannot attend court on that date. The Judge might, however, give the State a continuance to try to get their witnesses in court.

In cases more serious than traffic tickets, there might be witnesses other than police officers. It might be a domestic spouse or partner in a Battery case, or an eyewitness in a theft case. While these witnesses are likely required to be present for the State to be able to prove their case, and the State must prove proper service of the witness subpoenas to be legally entitled to a continuance, there might be some exceptions.

The State, in limited circumstances, might be able to introduce certain evidence as hearsay, meaning that someone can testify as to what someone else who is not testifying said. While that is generally not allowed, there are a few exceptions to the hearsay rule. There might also be video evidence of a crime that can be authenticated by someone who was not an eyewitness. Finally, even though an alleged victim might prefer not to testify, or attempt to refuse to testify, there could be another eyewitness that could testify as to what happened.

The State can also use the power of the court to attach a witness that does not appear in court. That means that if a witness was properly served with a subpoena, the Judge can issue a writ of attachment and send the Sheriff's Department out to pick up the witness and hold the witness in jail until he or she testifies in court.

It is also important to remember that it is a felony to attempt to influence a witness or prevent them from testifying. It is a new and separate crime to tell your girlfriend who is the alleged victim in your simple battery case to not come to court. 

Finally, every Defendant also has the right to compel witnesses to come to court to testify on their behalf. A Defendant can obtain witness subpoenas from the clerk's office, and with proper service, can compel their own witnesses to come to court. Just like the State can use the Sheriff to pick up witnesses who are not present, the Defendant can do the same.

If you have any questions about your criminal case, call Kyle Jarzmik at 678-967-0197.


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