What Happens if Your Witness is Unavailable at Trial?

What if a key witness is unavailable at trial?

In State v. Nelson, the SC Court of Appeals reversed an Horry County manslaughter conviction, finding that the trial court should have granted a continuance or declared a mistrial when it was discovered that a key defense witness was hospitalized and could not attend the trial.

Nelson was charged with murder, possession of a weapon during the commission of a violent crime, and possession with intent to distribute cocaine base. He was convicted of voluntary manslaughter (a lesser included offense of murder) and possession of a weapon when the trial court refused to grant a mistrial despite the defense’s key witness being hospitalized and unable to attend the trial.

Does the Court have to grant a continuance or a mistrial if a witness is unavailable for trial?

Sometimes – in some situations, it is a violation of a defendant’s right to compulsory process under the Sixth Amendment.

When Must the Court Grant a Continuance Because Your Witness is Unavailable at Trial?

It is rare for an appellate court to overturn a conviction based on the trial court’s denial of a request for a continuance (or a mistrial, as in this case) because the grant or denial of a continuance is in the court’s discretion.

When the denial of a continuance violates a defendant’s constitutional rights, however, it is an abuse of discretion for the court to force the trial to go forward.

Is it a Constitutional Violation for the Court to Deny a Continuance?

If a witness is unavailable for trial, if their potential testimony is important for the defense, if the testimony is not cumulative or cannot come from another source, and if the defendant followed the procedural requirements including issuing a subpoena for the witness, then the refusal to grant a continuance or a mistrial is a violation of the defendant’s right to compulsory process.

Article I, Section 14 of the SC Constitution says:

The right of trial by jury shall be preserved inviolate. Any person charged with an offense shall enjoy the right to a speedy and public trial by an impartial jury; to be fully informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be fully heard in his defense by himself or by his counsel or by both.

Similarly, the Sixth Amendment to the US Constitution says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Compulsory process means the defendant’s ability to subpoena witnesses for testimony at his or her trial, and the assistance of the court in enforcing subpoenas when necessary.

Did Your Attorney Subpoena the Witness?

You may not have grounds for a continuance or mistrial (or appeal) if your attorney did not follow the requirements found in the SC Rules of Criminal Procedure:

All components of Rule 7(b), SCRCrimP, including that of the attestation under oath, are strictly required, and a party asking for a continuance must show due diligence in trying to procure the testimony of the witness, as well as what the party believes the absent witness would testify to and the basis for that belief.” State v. Colden, 372 S.C. 428, 438, 641 S.E.2d 912, 918 (Ct. App. 2007).

Rule 7(b) requires the defendant to issue a subpoena and provide an affidavit to the court stating what the witness’ testimony would have been if they were available for trial:

(b) Continuance Because of Absence of Witness. No motion for continuance of trial shall be granted on account of the absence of a witness without the oath of the party, his counsel, or agent to the following effect: the testimony of the witness is material to the support of the action or defense of the party moving; the motion is not intended for delay, but is made solely because he cannot go safely to trial without such testimony; and has made use of due diligence to procure the testimony of the witness or of such other circumstances as will satisfy the court that his motion is not intended for delay.

(1) When a subpoena has been issued, the original shall be produced with proof of service or the reason why not served endorsed thereon or attached thereto; or if lost the same proof shall be offered with additional proof of the loss of the original subpoena.

(2) A party applying for such postponement on account of the absence of a witness shall set forth under oath in addition to the foregoing matter what fact or facts he believes the witness if present would testify to and the grounds for such belief.

The witness’ testimony must be material (important) to the defense, and it cannot be cumulative to the testimony of other witnesses.

Was the Testimony Cumulative?

If a witness is unavailable but other witnesses can provide the same information, the court may deny the continuance or mistrial:

Testimony from an unavailable witness that is likely merely cumulative to other evidence introduced at trial does not supply a strong basis for a continuance pursuant to Rule 7(b), and there is no abuse of discretion in the trial court’s denial of a continuance under such circumstances.

In State v. Nelson, the defendant’s witness would have attended the trial voluntarily. When the defense discovered that the witness was hospitalized (during trial), the defense served a subpoena on the witness and then provided the subpoena and affidavit required by Rule 7(b) to the court.

The Court of Appeals found that the anticipated testimony of the unavailable witness was not cumulative to other witnesses, that it was material to the defense, and that the defendant complied with Rule 7(b) even though the subpoena was not served until after the start of trial.

Because the defense could not have known that the witness would be hospitalized before the start of trial, the defense had no reason to request a continuance before the trial started. Instead, the court should have granted the defense’s request for a mistrial once they discovered that the witness was unavailable:

In short, it was not the failure of the defense to subpoena the witness prior to the commencement of trial that caused her absence; rather, it was the witness’ unexpected hospitalization after the commencement of the trial that caused her to be unavailable to testify. Once defense counsel became aware that Brockington was not going to be available to testify at the appropriate time, he made the proper motion and complied with Rule 7(b). Accordingly, Nelson acted with due diligence in attempting to procure the testimony of Brockington.

The Court of Appeals reversed the convictions for manslaughter and possession of a weapon during a violent crime and ordered a new trial. Because Nelson was acquitted of the original murder and drug possession charges, the new trial can only be on the manslaughter and weapon charges…

Criminal Defense Lawyer in Conway, SC

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