GETTING WITNESSES TO COURT (IN SHACKLES, IF NECESSARY)
I had a district court trial—it was complicated liability dispute before Judge John Green in Baltimore City District Court. In this auto accident collision we sued the other driver, and the other driver sued us. This was a classic red light/green light case, which boils down to he-said/she-said when there are no independent witnesses.
An independent witness is a person who is unaffiliated with either party who sees the auto accident. Independent is important—friends and relatives are more likely to lie to help their friends and relatives, so they have a bias, an incentive, to lie (even while under oath).
In our case, there were no independent witnesses. However, there was a police officer who talked to the parties immediately after the collision. In a trial, that police officer could testify about what the parties said, even if one of them hypothetically told the police officer that he “didn’t know what color his light was.”
In our case, the police officer was subpoenaed by two lawyers. A subpoena is an order from the court which commands someone to do something. In this case, it directed the police officer to come to court on the day of trial so that he could be asked questions.
Predictably, our police officer didn’t show up. Now, the parties are entitled to have their witnesses at trial. This officer was considered an important witness, because he had direct knowledge of what one of the parties saw right before the collision. It would be unfair to force the parties to move forward without it.
When a witness ignores a subpoena, the judge can send the parties home, reschedule the case, and send out what’s called a show cause order to the witness. That order requires the witness to come to court (sometimes on the next trial date, sometimes at another time), and explain to the court why he failed to appear. Most judges are reasonable if the explanation is reasonable. Reasonable explanations might include: “I put it on my calendar for the wrong date,” or “I was working the night shift before and I accidentally set my alarm for p.m. instead of a.m.”
If the witness doesn’t appear for the show cause order, the judge can issue a bench warrant. Basically that is an order directing the police to pick the witness up and throw him in jail until the judge is ready to talk to him about why he ignored two court orders. That’s a bad spot to be in.
Judge Green opted for a slightly different approach. He gave the lawyers a few minutes to call everyone we could, including the cell phone of the witness, the police department’s legal department and the police department’s accounting department. When those efforts were unavailing, he contacted the police department directly, got ahold of a supervisor, and instructed him to find out what was going on, and to get the officer to court. So we waited, our 1:30 trial put on hold until the police officer finally arrived at 3:50 (requiring many conversations with the supervising officers).
I’ve rarely seen a witness so terrified (we all felt bad for the police officer who, though he did this to himself, hopefully had a legitimate excuse for not showing up on time). The end result was that the officer testified, and thankfully the case did not need to be postponed to another day.
So, if you have a civil case and you have a witness, you can force that witness to appear at trial, as long as your lawyer can serve him with a subpoena. In most cases, the judge will do what they can to get your witness to court.