Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

Obtaining Justice
For The Accused

At Ahmed & Sukaram, Attorneys at Law, we have been saving clients from jail, years in prison, excessive fines and wrongful convictions since 2005.

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Witnesses Representation

What should I do if I’ve been sent a subpoena to testify in a criminal trial?

If you have been sent a subpoena to testify as a witness in a criminal trial, the first thing to do is check to see whether the subpoena was properly “served” on you. The laws regarding service of a criminal subpoena in California were recently amended in order to allow for service by email or fax. (Stats. 2019, ch. 851.) As amended, Penal Code section 1328d, subdivision (a), states that “a subpoena may be delivered by mail, messenger, electronic mail, or facsimile transmission.” (Pen. Code, § 1328d, subd. (a).)

Nevertheless, merely sending an email or fax with a subpoena is not enough. Instead, the new law indicates that additional steps must be taken for service to be proper:

Service shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, over the internet by email or by completion of the sender’s online form, or in person, and identifies themselves by reference to their date of birth and driver’s license number or Department of Motor Vehicles identification card number.

(Pen. Code, § 1328d, subd. (a).) Stated another way, service is not complete until the witness (1) acknowledges that they received the subpoena and (2) identifies themselves through their birthdate and either driver’s license number or DMV identification number.

The new law regarding service “does not apply to the delivery of a subpoena to a peace officer for events or transactions perceived or investigated in the course of the officer’s duties.” (Stats. 2019, ch. 851.) In other words, if a police officer either witnessed or investigated events relevant to a criminal trial, a witness subpoena must be served on them according to the specific requirements of Penal Code section 1328, subdivision (c). (See Pen. Code, § 1328d, subd. (a).)

As a general matter, if you have been properly served with a subpoena to testify at a criminal trial, you must comply and appear in court at the date and time specified on the subpoena. Failure to do so could result in you being held in contempt of court and possibly sent to jail.

Do victims of sexual assault or domestic violence have to testify?

The short answer is no. California Code of Civil Procedure section 1219, subdivision (b) states that “[n]otwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim of a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.” (Code Civ. Proc., § 1219, subd. (d)(1).) Stated another way, a victim of sexual assault or domestic violence cannot be jailed for refusing to testify.

The law is specific, however, about what constitutes “sexual assault” and “domestic violence.” Regarding sexual assault, the law states that this term “means any act made punishable by Section 261, 262, 264.1, 285, 286, 287, 288, or 289 of, or former Section 288a of, the Penal Code.” (Code Civ. Proc., § 1219, subd. (d)(1).) These code sections respectively cover rape, spousal rape, rape or penetration of genital or anal openings by foreign object, incest, sodomy, oral copulation, lewd or lascivious acts, and forcible acts of sexual penetration. Thus, for sexual assault victims to be protected from being imprisoned for refusing to testify, the defendant must have been charged with one of those crimes.

Regarding domestic violence, the law states that this term “means ‘domestic violence’ as defined in Section 6211 of the Family Code.” (Code Civ. Proc., § 1219, subd. (d)(2).) California Family Code section 6211 provides the following definition of “domestic violence”:

“Domestic violence” is abuse perpetrated against any of the following persons:

  1. A spouse or former spouse.
  2. A cohabitant or former cohabitant, as defined in Section 6209.
  3. A person with whom the respondent is having or has had a dating or engagement relationship.
  4. A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
  5. A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
  6. Any other person related by consanguinity or affinity within the second degree.

(Fam. Code, § 6211.)

What happens if a sexual assault or domestic violence victim chooses not to testify?

Oftentimes, the refusal of a domestic violence or sexual assault victim to testify at trial has the effect of helping the defendant, as their refusal limits the evidence against the defendant at trial. Nevertheless, there are still ways that the victim’s testimony may be admitted. For example, if the victim made a statement to a police officer or another individual regarding the incident, that statement could potentially be read in court if a hearsay exception applies. Examples of common hearsay exceptions, or situations where hearsay statements may still be admitted, are statements made under stress or excitement, or statements against the person’s interest.

Nevertheless, if the victim does not testify, criminal defense attorneys will generally try to limit these kinds of hearsay statements from being read at trial. Commonly, this occurs by invoking the confrontation clause of the Sixth Amendment and the United States Supreme Court case of Crawford v. Washington. Under Crawford, if a hearsay statement is considered “testimonial,” it cannot be admitted unless certain requirements are met. Testimonial hearsay occurs when the government takes a statement from someone in anticipation of litigation or future prosecution.

If you are a victim of a crime and don’t wish to testify against the person accused of committing the crime against, give us a call today so that we can discuss how we may able to assist you.