We are starting a murder trial on Monday. Defense lawyer is in a panic because a witness he wants has not been found or served. We asked for the subpoena but our investigator can not find the guy. We don't really need him and we don't think he is "necessary." Defense lawyer is stalling in my view...any ideas about how to handle the coming motion to continue...I'm looking for law now...thanks

Well, I have no law handy, but doesn't a defense attorney have to exhibit due diligence to obtain service or locate a witness before he can move for a continuance for want of a witness? I know many judges will allow the defense to rely upon your subpoena (if served) but will your court allow him to rely upon your due diligence as well?

Of course, if he has not asked for a subpoena and not engaged in efforts that indicate the importance of the witness (like having investigator appointed or actually causing a subpoena to be issued) then how can he argue in good faith that he has exhibited diligence?

Then, of course, as you well know, you can attack the materiality and relevance of the proposed witnesses testimony in your continuance hearing, based upon any statements in the file by witness or based upon the facts themselves.

Hope you are well, Freddy.

If I issue a subpeona which is not served, I would hesitate to criticize the defendant for not issuing their own subpoena. I wouldn't want to appear to be trying to pull something on the defense. Now, if I told them in advance that I was not going to seek to have the subpoena served, then I think you could argue that I've put them on notice that they should find the witness themselves if they want him. In either case, I would want the defense to explain why they need the witness and whether they have any reasonable likelihood of locating the witness by the next court date. If they are asking for a continuance, they should be willing to answer both questions for the court.

Thanks, folks. Found several cases that should help. Also, I did tell the defense attorney that I considered the witness to be peripheral only, that he was known to be homeless and that it wouldn't affect the State's case if he wasn't served. So far defatty hasn't filed for a continuance but the day is young.

Thank for the thoughts on this common issue...the judge allowed a continuance...it seems that materiality of the absent witness is the key question...and there is a very low threshold.