View Full Version : Trial witness question

10-12-2008, 08:40 PM
If the prosecution of a case against one of my friends or family wanted me to appear in court, what would happen?

I know I'd be served an subpoena, but would there be an exact date to appear? Would I have to sit in a special room the whole trial until I'm brought in?

Thank you in advance for reading this and any help you can give.

Kathie Freeman
10-12-2008, 09:00 PM
There would be an exact date to appear, and you would be kept in a separate room, but only for that day and only until you give your testimony. In some places you might just be kept standing in the hallway. Witnesses are not allowed to talk to each other, so there would be a guard or bailiff to watch you.

10-12-2008, 09:12 PM
There would be an exact date and either morning or afternoon session to appear. Usually prosecutors have you report to their office.

Witnesses may or may not be sequestered. It depends on the trial strategy of the attorneys. In the case of family or friends, one of the attorneys might realize that your testimony completely contradicts someone else. That attorney might want you in the courtroom to hear the lying S.O.B. testify to put some fire in your belly when you testify. (Of course, if the other attorney realizes this, he'll want you sequestered.)

There can be other reasons, especially with expert witnesses. It's up to the judge and attorneys on an individual basis.

Best of luck,

Jim Clark-Dawe

10-12-2008, 09:57 PM
True advice so far. I just wanted to mention--though it may not be relevant--that at least in a federal criminal case, and likely in most/all states, if one side wants the other side's witness sequestered, it's pretty much automatic--even if the other side objects, the witness is going to be sequestered. But, unless a given judge has the policy of always sequestering witnesses, it won't happen unless one side moves to sequester the witness. Then the two sides may argue about it, but the judge will generally grant the motion--there's almost no reason she wouldn't grant it.

Oh, and this applies only to the actual testimony/evidence part of the trial--not to opening or closing statements. A sequestered witness can watch opening statements unless there's a MAJOR reason not to let them.

10-12-2008, 10:47 PM
- depends on the fam member and where. For ex, in AK, a spouse has the absolute right not to testify against a spouse.

- verr common for the date on the subpoena to give the trial start date, but that is not the same as scheduling the witness test... if the defense crosses the last pros wit for 3.5 hrs when we expected 15-20 min (yeah, it happened, no I'm not still annoyed. much) then that wonks the whole schedule.

- children wit are handled w/ much more care.

If you give the crime, jurisdiction (9th circ verr lib, 6th,not so much) crt level (just state court? city? or fed?) and relative rela between the witnesses, you can get a better answer to your spec scenario.

10-12-2008, 11:06 PM
I would like to thank everyone for their responses/messages. I got all the info I wanted.

10-15-2008, 12:13 AM
The word 'sequestered' is being used incorrectly here.

Sequestering is what happens when you remove the person/group from all contact with the world - usually into a 'protective custody' sort. Generally it's not done with witnesses but rather a jury where it is believed that the jury would be unable to be able to create an impartial verdict while being allowed to be on the outside world.

So, the news coverage and such is so pervasive that the jury is not able to filter it out at the end of the day so would be unable to go home if they haven't already made a decision.

What you are looking for here is the 'rule of exclusion'. This is where one side or the other says that they don't want the witnesses to be able to talk to each other <i>about the case</i> or hear other testimony. It's actually quite common to keep the testimony of others 'fresh' and their own. This rule would be asked for by one side or the other at the beginning of the trial (and not just trials but any court room hearing) and once invoked and applied by the judge, then the witnesses all leave the room and are under admonishment not to discuss the case or their testimony with anyone but the lawyers involved in the case (from either the DAs/prosecutor's offense or defense attorneys).

And generally there isn't a 'guard/bailiff' where the witnesses are (which is usually just the usual waiting room or lobby) to watch over them. Unless there is some other pressing problem (such as when the family of a victim or defendant is making active/vocal threats against others). However, in most criminal cases you'll have enough people there who understand the process in order to make sure that the exclusion remains in affect. Mostly cops and the like.

Witnesses CAN talk to each other...just not about the particular case that they are under subpeona for at that time. The witness is usually admonished that they are still under subpeona and still not able to discuss the case/testimony with others until they are released from the subpeona or the case has gone to closing arguments. Because they can be called back to testify at any time.

So, sequestering a witness would normally be done for protection or to ensure they're arrival at court to testify. And no, it's not unrealistic for a judge to order a person to be taken into custody and held in 'lockup' to make sure they appear at court as they are supposed to.


10-15-2008, 01:34 AM
In the State of New Hampshire and the Commonwealth of Massachusetts (the states I practiced in), we used the term sequester to mean isolating a witness from the courtroom. If I used the words "rule of exclusion," especially in district court, the judge probably would have gone, "Huh?" although you are more exact.

By the way, especially in district court, this would be a rather informal procedure. Judge would ask defense counsel before the trial began, "Do you want the witnesses to leave?" I'd say "Yes," and that would be it. In Superior Court I might actually work up the energy to actually file a motion in limine, but usually it would be addressed during the pretrial conference. I'm sure that must be a prosecutor that wanted to keep witnesses out of the courtroom, but usually it's defense counsel.

Requesting that a judge sequester a jury is a much more formal and involved affair. But yes, some places use the same word, as all it means is to isolate. And attorneys have bastardized Latin like you wouldn't believe.

Best of luck,

Jim Clark-Dawe

10-16-2008, 09:40 AM
In the State of New Hampshire and the Commonwealth of Massachusetts (the states I practiced in), we used the term sequester to mean isolating a witness from the courtroom. If I used the words "rule of exclusion," especially in district court, the judge probably would have gone, "Huh?" although you are more exact.

Good to know re: New Hampshire as I still think of moving there and continuing my profession every so often. Hate to be completely thrown off when I was told I'd be 'sequestered' for any trial I may be part of.

As for our system...it's usually the defense that wants it (don't know why) and the judge asks at the beginning so that it's a matter of record and the witnesses - who are always gathered in the courtroom at this point because...uhm...that's what the court seems to want- know they are under 'exclusion' and are formally admonished of the same by the judge.


10-16-2008, 04:19 PM
You'd receive a summons to appear at a certain time and date, but the date would probably change, and the lawyer would forget to tell you. You'd miss a day of work and drive an hour to the courthouse, to find that your case had been rescheduled. Then they'd expect you to schedule another day off from work, and travel again. Then, when you arrive at the courthouse the second time, you'd discover they settled out of court.

When you ask for two days of witness pay and travel pay for two trips, they tell you they will pay one day of travel, and no witness pay because you didn't testify. After threatening to shove his travel pay where the sun don't shine, he will agree to one day's pay.

Don't ask me how I know.