Witness absence is not to be expected but is for taking full advantage, says Fairfax criminal defense lawyer

Witness absence (WA) should not be in your arsenal of wishful thinking as the accused. Nonetheless, as a Fairfax criminal defense lawyer, I have recently experienced numerous recent prosecution WA’s, and share with you how to pursue the maximum possible benefit for your liberty when that happens. In short, the analysis about prosecution WA includes whether the prosecutor needs that witness in the first place on the current court date, why the witness is absent, what are the chances that the prosecutor will be able to secure a continuance, what are the defense arguments against a continuance, how to object to a prosecutor’s nolle prosequi motion to that follows an unsuccessful continuance motion, the deadline for refiling a misdemeanor prosecution, and the settlement / plea deal opportunities considerations that may be present in the face of prosecution WA.

Should I hope for prosecution witness absence?

Wishful thinking is not a wise criminal defense strategy, so you should not hope for prosecution WA, and of course are not permitted to do anything to cause their non-presence in court. As a Fairfax criminal defense lawyer, I expect a low percentage of police prosecution witness absences for the trial date In the Virginia General District Courts where I practice, judges routinely permit law enforcement officers (LEOs) to designate as little as one day per month on which they are available for trials, and to not too often deviate from those dates. When the foregoing approach clashes with my own trial calendar, I am ready to argue that the Due Process guarantee of the Constitution’s Fifth Amendment and the Sixth Amendment’s right to counsel of one’s own choosing (U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006)). Of course, police and prosecutors do not always know who are their essential LEO and civilian witnesses, who are going to be absent on your trial date if nobody arranged for their court presence.

Should my Virginia criminal defense lawyer object to the prosecutor’s continuance motion in the face of witness absence?

When a Virginia assistant commonwealth’s attorney / prosecutor recognizes that witness absence, missing evidence or other non-readiness is present in their case, they may ask the court to continue the trial date. Should your Virginia criminal defense lawyer object to the prosecutor’s continuance request? That answer must focus solely on your own needs and interests. For one thing, consider the chances that the prosecutor will obtain a continuance even with the best defense objection. Here, for instance, are considerations for judicial policies for continuing Fairfax criminal and DUI trials (and here is the latest version that I know of for the Fairfax County General District Court administrative procedures). Beware what happens if your lawyer successfully opposes a prosecutor’s continuance request to secure the presence of a needed witness, the witness then walks into the courtroom, and your lawyer really wanted a continuance (but preferred that the continuance be in the prosecutor’s name.).Sometimes, your lawyer can obtain a negotiated-for benefit in exchange for not opposing a prosecutorial continuance motion, for instance to obtain a beneficial evidentiary stipulation that otherwise might have cost significant funds for you to have proven or that may have been difficult to prove in the first place. Finally, the prosecutor’s planned continuance request may be an opportunity to pursue a more favorable plea deal or other settlement negotiation than otherwise. Of course, your criminal defense lawyer should not pursue a deal if the prosecutor has zero chance of obtaining a conviction against you. When the benefit of agreeing to a continuance is none and the cost of objecting is none, the scale tips in favor of objecting. Nonetheless, not objecting may sometimes build goodwill for the defense when the defense in the future seeks prosecutorial consent to a defense continuance or other benefit that might not automatically be granted by the court. With all that said, as a Fairfax criminal defense lawyer, I repeatedly object to prosecutorial continuance motions, which sometimes brings important benefits for the accused.

Will a continuance denial lead to my being recharged for my alleged Virginia offense?

A now-retired Fairfax judge would often ask me when I objected to a prosecution continuance request whether I wanted my client re-arrested after a any denial of a prosecution continuance request based on witness absence or otherwise. I would not back down when he said that. First, when a judge denies a continuance, the prosecutor is not entitled to a nolle prosequi (non-prejudicial dismissal that allows recharging the defendant), as the entry of a nolle prosequi requires good cause). Second, I have experienced judicial denials of prosecutorial nolle prosequi motions. Third, even if a nolle prosequi is granted, that does not automatically mean the prosecutor or LEO will recharge the case. The inertia caused by the non-continuance may make the prosecution slip through the cracks, or may lead to the prosecutor and/or LEO concluding that renewing the prosecution is not advisable for one reason or another.

Has the deadline passed for the prosecutor to re-charge you for an alleged Virginia misdemeanor offense?

A recharge against you will not get a conviction if the deadline to prosecute you has passed. I have been able to prevent any further Virginia misdemeanor prosecution of my client by successfully objecting to a prosecutorial continuance request (they have been based on witness absence) where the deadline for prosecting the alleged misdemeanor has passed. Virginia felony prosecutions do not carry a deadline for initiating prosecution, but Virginia misdemeanor prosecutions usually must be commenced within one year of the alleged offense (except for certain alleged crimes that have a longer prosecution commencement deadline than that). In one instance where the one year prosecution commencement deadline had passed, the prosecutor on the trial date told me that the complainant could not be present due to an elective medical procedure taking place that day. When I told him I would object, he told me he would be livid for me to do so. My obligation as a Virginia criminal defense lawyer is to my client, and not whether a prosecutor will be angry at me. The judge agreed that no good cause existed for a continuance, which amounted to a full and final prosecution dismissal and defense victory. In another instance, the prosecutor had not secured a subpoena for an essential witness, who did not appear on the trial date. The judge found no good cause to continue the trial date, and that resulted in a final dismissal of the case.

Should my Virginia criminal defense lawyer negotiate a settlement on the date that the prosecutor is not ready for trial?

If your prosecutor is not ready for trial today due to witness absence or otherwise, to what extent does that indicate that the prosecution will not be ready for trial on a subsequent date? A risk of reaching a plea deal before the trial date is not knowing whether an essential prosecution witness will be absent from your trial date. At the same time, not needing to prepare for trial nor to inconvenience witnesses can be an incentive for a prosecutor to settle your case favorably to you. With some exceptions, for Fairfax and other Northern Virginia District Court cases, I am able to wait until the trial date before reaching any plea deal. An advantage in doing so is to see whether the prosecutor has the necessary witnesses and evidence to be able to prove their case, and is also an opportunity for your Virginia criminal defense attorney to speak with prosecution witnesses who otherwise would have made themselves unavailable for discussion before the trial date. Also, waiting until the trial date to settle your case gives the prosecutor a choice between taking the time for your case that date, or settling it and having more time available for the prosecutor’s remaining cases in court that date and to prepare for upcoming prosecutions. When your prosecutor is going to seek a case continuance to secure the presence of a necessary witness, the prosecutor’s incentive to reach a plea deal favorable to you on that date can include their not knowing whether the judge will grant a continuance, and their hedging their bets over whether the witness will appear in court on any next trial date.

Fairfax criminal defense lawyer Jonathan Katz relentlessly fights for your best defense against Virginia felony, misdemeanor and DUI prosecutions. For your free in-person confidential consultation with Jon Katz about your court-pending prosecution, please contact Jon’s staff at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.