Lawsuits are a funny thing. Everyone seems eager to file them, but everyone complains when the accused seeks to investigate the claims. This is especially true when it comes to depositions. In felony criminal cases, defendants may face a 25 year minimum mandatory prison sentence for trafficking based on the testimony of a witness that won’t even spend a few minutes in depositions to answer a few questions. When a witness fails to appear at depositions–and your client if facing a mandatory prison sentence–what can be done to right this wrong?
Some criminal defense attorneys immediately file a motion to strike the witness, requesting that the judge remove the witness from the State’s witness list, so that the person cannot testify in trial. Seems fair, right? If the witness doesn’t appear for depositions, the defense has no idea what they’re going to say at trial (and no time to investigate what may be said, if they’re already in front of the jury), so it makes sense that a judge would simply refuse to allow the witness to testify if that same witness has refused to appear for depositions. Unfortunately, the criminal rules are not so simple. The rules require a defense attorney to ask for other sanctions first–prior to requesting that the witness be struck from the witness list. Once those other sanctions fail to bring the witness into depositions, the court may then (and only then) strike the witness.
The State is under no obligation to transport their witnesses to depositions. Courts have held that “[it] is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law”. State v. Jackson, 436 So.2d 985, 986 (Fla. 3d DCA 1983). But wait till you see what the court wants done before exclusion. The law requires a witness to be, basically, ‘punished’ before being banned from testifying at trial.
It goes like this. A witness fails to appear at deposition. Rather than asking the judge to remove the witness from testifying at trial, the defense attorney must first request a lesser sanction. This request can be titled in many different ways, I call it a “Motion for Sanctions”, but others call it a “Motion for Rule to Show Cause”. In my motion, I request that the court have the witness appear at a hearing to address why he/she failed to appear at deposition. The witness must then appear at a future court date, in front of the judge, and explain his/her absence from the deposition. Failing to appear at this court hearing triggers all the punishment to be inflicted upon the witness.
Should the witness fail to appear for the hearing, that’s when the judge may grant the Motion for Sanctions. The sanctions may take one of two forms, either the witness may be held in contempt of court for not appearing, or the court may issue a Writ of Bodily Attachment. Basically, a writ of bodily attachment is a “warrant” of sorts that permits law enforcement to arrest the witness. The witness would then wait in jail until the deposition date is held. This seems a bit extreme, right? In my 20 years of criminal defense, I’ve never had a witness arrested; it’s never come to that. But what has always struck me as odd is that the law requires the court to first issue a writ of bodily attachment before excluding a witness at trial. Seem to me that sitting in jail is far more extreme “punishment” than striking the witness from testifying at trial.
In State v. Gonzalez, the appeals court overturned the striking of a witness for failing to appear at deposition because “the exclusion of a witness is justified only after some lesser sanction, such as contempt or writ of bodily attachment, has been attempted without success in making the witness attend a deposition.” 695 So.2d 1290, 1292 (Fla. 4th DCA 1997). And that seems to be the only issue that bugs the appeals court–the lower courts can only exclude witnesses if they try a few things first. So, first seek to have a writ of bodily attachment issued for the arrest of the witness, or attempt to have the witness held in contempt of court–and only after that fails may you exclude the witness from trial. Now you know.