A common refrain that’s heard in criminal court is: “I gave a statement, so I’m done. I don’t have to appear in court because the judge has my statement.”
Understandable, especially because witnesses have told me in the past that a detective told him/her, “Just make a statement and that will be good enough for us. You’ll never have to come in to court or deal with this again.”
This statement by this detective in this example is a lie told by the detective to coax the witness into making the statement.
Statements are an important part of a criminal investigation. Sometimes they take the form of something an officer or a prosecutor writes that the witness signs. Sometimes they take the form of an audio or video recorded statement that the witness agrees to record.
Sometimes the statement is taken after the witness is brought to the courthouse and testifies under oath in front of a set of people called a Grand Jury.
Once the statement is given, does that mean that the statement be used at a criminal trial as a substitute for the witness showing up and testifying live and in person? Almost always the answer to that is no. The same is true when defense lawyers and investigators obtain statements from witnesses. One simple reason for this is that there’s no way for a judge or a jury to assess a witness’ credibility by reading a witness statement. Another reason is that both sides have a right to cross-examine witnesses and challenge evidence the other side brings. A lawyer, even the best lawyer, cannot cross-examine a piece of paper, an audio file, or a video file. Another reason is that a defendant in a criminal trial has the fundamental Constitutional right to confront the witnesses against him/her. A defendant, innocent or guilty, cannot confront a piece of paper, an audio file, or a video file.
If a witness is important to a case for one side or the other, one can expect that witness to be served with a subpoena. A subpoena is a court order to show up to court on a specific day and time in front of a specific judge in a specific courtroom. Because it’s a court order, it cannot be ignored. If you have been told that making a statement gets you out of testifying, that person either does not know what they are talking about, or they’re lying to you, plain and simple.
If you’re asking, then what’s the point of the statement in the first place if I still have to come in when prosecutors subpoena me? That’s simple to answer. They got the statement from you to make it more difficult for you to deny the contents of the statement later. If a witness hypothetically contradicts the statement, many times the statement can be used to establish not just that the witness is lying, but that the statement is true, positive evidence against the Defendant.
If you’re hit with a subpoena, you must show up to court. The consequences for willfully failing to ignore a subpoena is called contempt of court. This can mean fines and jail. If you’re a witness facing contempt, you need a lawyer.
Now, there are some limited occasions where the side that served you with the subpoena cannot force you to testify. This requires a lawyer to help you protect your rights. A subpoena may force you to come to court, but if you’re looking at being asked questions that could legitimately incriminate you, you may very well have a right not to answer the questions. You’ll need a lawyer to help persuade the judge that you as a subpoenaed witness cannot be forced to testify.
Likewise, there are a handful of privileges that may be available to protect you from having to answer specific questions. For example, what a husband and wife discusses in private may be protected information because of what’s called a marital privilege. What you and your doctor discuss may be protected information due to a doctor-patient privilege.
If you have been served with a subpoena and you have concerns, you will need a lawyer. The Law Office of William Wolf, LLC has many years of experience representing witnesses in these kinds of situations.