Must an Alleged Victim Show Up in Court?

IMG_4236-e1530542832691-225x300We Americans can be a rebellious group.

I’ll go out on a limb here and claim that we’re more rambunctious than most countries.  To prove my point, take the following example.

Think back to the 1970’s.  The whole world is converting to the metric system.  Two north american governments decide to make a big change.    You know, Kilometers instead of Miles.  The whole nine yards.    Canada and the United States agree that its time for North America to catch up with the rest of the world, so both countries pass a law making the metric system “official”.

Now, if you travel to Canada, their signs will say “Ontario — 10 Kilometers”.

If you travel here in the US, you’ll see “Miami — 10 Miles”.

Both countries passed the law.  Both countries agreed to convert.  Why did Canadians follow their law, and we ignored it?

Because, we’re Americans.  We don’t like being told by some Supreme Authority how to measure things.  We don’t like being told what to do.  And this brings me to the topic of the day.

When a letter comes in the mail telling you to show up for court, must we citizens drop everything, fly back into town from our vacation,  and appear in court?  All because a piece of paper lands in our mailbox?

More importantly, what happens if you don’t show up to court?

You’re not going to like this answer, but you MUST hire an attorney to answer this question.

The article should end here.  Bye.  Call an attorney.

One judge put it like this, and I’m paraphrasing: “Mam, take a look at that subpoena.  Do you see the words RSVP anywhere on the document?  No.  This is not an invitation, its a court order.  If you disobey my court order, there will be consequences.”

But still, what happens if I don’t show up for court?

Two answers: First, the judge could hold you in contempt of court (fine, jail, probation, nasty stuff).

Second, nothing may happen.  It all depends on the facts of the case, and the county (we have 67 counties in Florida, each one treats this issue in a different way–that’s one reason why you’ll need an attorney).

Now, most alleged victims think that if they don’t cooperate the case will be dropped.  This is especially true of domestic violence battery cases.  And, welcome to the most common urban myth out there.  “I don’t need an attorney, because my girlfriend isn’t cooperating.”

Don’t believe the hype.

Victim cases can–and do–move forward without a victim testifying.  As a side note, that’s how they get convictions in murder cases.  You never get the victim to testify in a murder case, yet somehow, they seem to get convictions.  Go figure.  And, a murder case is just a battery case where the victim happened to die.

The vast majority of victims who do not want to testify are involved in a domestic violence situation, “battery DV” for short.  Typical facts:  A couple gets drunk. The couple fights.  What, alcohol causing problems?  No way, right?  Alcohol fuels loud arguments where both sides say things they didn’t mean.  Yes, people lie when their drunk and angry.  Do you think they stop lying when the cops show up?  Heck no.

So if you’re reading this, you probably know where this is going.  The police show up and listen to this alcohol infused rage, and someone gets arrested. Upon sober reflection, I’ve had hundreds of people say “I wrote that?  That didn’t happen.”  Yes, you would be amazed at how much faith prosecutors put in drunken sworn statements–when even sober eyewitness testimony can be suspect.

But the alcohol is only half the problem.  Bear in mind, these folks are writing statements  under the “guidance” of law enforcement standing 18 inches away, “suggesting” what should be written.  Having a few officers hover around your kitchen table at 3 a.m. while you’re still under the influence is never a good thing.

Ok, I’m a little off track here.  We want to answer the deceptively simple question: what happens if I don’t show up for court?  To understand what happens, we need to know how the person was told to show up in court to begin with.  The only way to force a person to show up in court is to serve them with a subpoena to do so.

Let me tell you about an old client, it relates to what we’re talking about here.

I had a client who pretended to be a police officer.  Its a felony to “impersonate a police officer”.  He parked his car outside a home where it could be seen from the front door.   When a young lady answered the front door, he “arrested” this gal.  He placed her in the backseat of his fake cop car.  Now, this sounds like the set-up for a sexual assault case, but it wasn’t.  It was an impersonating an officer case, with kidnapping to boot.  Before the “real police” arrived, he un-arrested her, removed the handcuffs and told this gal to appear in court on a certain date, at a certain time.

Was this woman required to appear in court?  The man had a badge.  The man had a cop car.

This story should demonstrate something rather obvious–nothing “binding” happens verbally outside of the courtroom.  If a stranger tells you that you have to appear in court, hire an attorney and have the attorney double check what you have been told.

If you get a phone call from someone that, supposedly, is from the prosecutor’s office and they claim you must appear in court–for the tenth time–I suggest you contact an attorney to see if this stranger is telling you the truth.  And, even if the stranger from the prosecutor’s office is telling the truth, a phone call does not constitute proper service to compel a citizen to come to court.

The only way to know, for sure, that you must appear in court is if someone with a badge personally, physically, serves you with “papers.”  This piece of paper will be arrogantly shoved in your face, and may be titled “summons” or “subpoena”.   Either way, you’ll need an attorney.  [This is, at least, the third time I’ve recommended getting an attorney, just saying.]

The general rule is, if someone is going to force you to show up in court–they should physically serve you with a piece of paper that states the date and time of the court appearance.

It is popular in Orange County for victims to receive subpoena service by US Mail.  Is our mail service perfect?  No.  But Florida law permits the government to compel an alleged victim to attend court, but if the subpoena was done by mail the person cannot be punished for failing to appear.  Basically, you cannot be held in contempt of court for not receiving a piece of mail.  Again, this is why you need an attorney to navigate these dark waters.

There are several other reasons why an alleged victim in a domestic violence battery case need not testify in court.  Notice I said testify?  Its different than appearing in court (we’ll get to that later).  Namely, Florida law protects the sanctity of the family.  This is a little known fact to many prosecutors.  If prosecutors want to call a wife or girlfriend or fiancee to testify against their significant other–can they force them to talk?

To have any meaningful discussion of victim’s rights, you’re going to have to have a little patience for the nuances in the law.  Most judges don’t appreciate this nuance, so you’ll need an attorney to argue this point, but there is a difference between being forced to appear in court and being forced to testify.

If you don’t show up for court, you may be held in contempt.  But, if you don’t testify, can you still be held in contempt?  Not necessarily.  Depending upon your situation, it may be the case that the prosecutor or judge cannot force you to testify once you arrive in the courtroom.  Even a properly served subpoena may only have the power to compel an appearance in court, it does not necessarily follow that testimony is required.  There are lots of reasons for this, and an entire book can be written on this subject alone.

Defense attorney Bob Fisher told me recently that he was doing battle in a case where the State had correctly served the alleged victim with a subpoena to appear in court, but Bob argued that his client (the victim) should not be compelled to testify.  Bob won, and the judge conceded to Bob that he couldn’t force his client to testify, only appear.  In this rare instance, the judge understood the nuance involved in forcing someone to appear–but not requiring that they testify.  After all, sometimes we only need witnesses to appear so that they can be identified, be part of a live line up, or to show the jury a physical attribute of the victim.  For example, in a Battery on a Pregnant Person, it may be helpful to show the jury the pregnant female–even if she’s not forced to testify–so that everyone can observe the belly and presume the woman is pregnant.