You are approaching trial, a preliminary hearing or a motion to suppress evidence and an important witness for you is not answering phone calls. You had a law clerk go to the witness’ home to knock on the door to remind the witness to be in court the following day and no one answered. The person is no longer responding to text messages or e-mails either.
The only thing to do is proceed without the witness and surely lose or request a continuance of the hearing, correct?
Why This Article Matters: This article advises what to do if one faces a rather common problem, witness unavailability due to losing contact, a witness having fears of showing up in court due to a warrant or immigration concerns, or the witness simply cannot arrange transportation to court.
If not, how does one request such a delay and what should one explain to the judge? The proper way to do so is through a Motion to Continue Trial under Penal Code § 1050, although the motion can be filed for hearings that are not trial at all, but less determinative matters, too.
Under Owens v. Superior Court (1980) 28 Cal.3d 238, 250, 168 Cal.Rptr.466, the party requesting a continuance due to a missing witness, regardless of whether the witness is for the defense or the prosecution, must advise the judge of the identity of the witness, the last known address of the witness and the gist of his or her testimony. See People v. Buckley (1972) 23 Cal.App.3d 740, 744, 100 Cal.Rptr. 551.
The motion has a better chance of being granted if the witness’ testimony is material, noncumulative to other witness’ testimony, the facts to be proven cannot otherwise be proven, the party seeking the delay has exercised diligence to secure the presence of the witness in court by legal means (i.e. a subpoena), and the witness will be available within a reasonable length of time (counsel may need to explain how he or she will secure the witness’ attendance. People v. Collins (1925) 195 Cal. 325, 333, 233 P. 97).
When defense counsel does not want the prosecutor to know the identity of the witness and the witness is unavailable, the motion to continue should be made in camera so that the prosecutor is not given information on the witness’ identity, unless the judge has already ordered prosecutorial discovery of the witness under Penal Code §§ 1054 to 1054.7.
Quite often, however, counsel simply does not know the witness’ place of residence despite making reasonable efforts to learn this. If counsel can establish for the judge that reasonable efforts have been made, i.e. by a private investigator and his or her declaration to this effect, this may be good cause for a continuance for a “reasonable amount of time in which to locate the witness.” See Penal Code § 1050(b) (affidavits or declarations showing specific facts required); Collins, supra; Harper v. Lamping (1867) 33 Cal. 641; People v. Hanz (1961) 190 Cal.App.2d 793, 798, 12 Cal.Rptr. 282.
If counsel tries to show reasonable efforts by use of a subpoena, counsel should establish that reasonable efforts were made within a reasonable time before the hearing. Last minute efforts may not establish due diligence to justify the delay. Collins, supra, at 333.
What if, however, counsel needs to secure a new or alternative witness because a witness on for testimony suddenly claims the privilege against self-incrimination? When this happens, the witness who claims the privilege is deemed not reasonably obtainable. People v. Sandoval
(1977) 70 Cal.App.3d 73, 83, 138 Cal.Rptr. 609. It merits mention that the witness does not actually need to be called to the stand at trial for the judge to determine that he or she will assert the privilege against self-incrimination. Instead, counsel can simply declare this is so. People v. Cornejo
(1979) 92 Cal.App.3d 637, 658, 155 Cal.Rptr. 238. The judge can then continue the matter a reasonable amount of time for counsel to secure a new witness as long as one is reasonably available.
For more information about continuing a hearing, please click on the following articles:
- Do You Need a Hearing Delayed for More Time to Prepare?
- How and When Does One Seek a Continuance of a Hearing?