CHAPTER 8

CONTINUANCES AND MATERIAL WITNESS WARRANTS

A. CONTINUANCES

Continuances requested by the defense in domestic violence cases should be agreed to sparingly due to the necessity of resolving the case before the victim is further abused or coerced into failing to appear for court. This chapter focuses upon trial continuances requested by the prosecution as well as the issuance of material witness warrants which will also require a continuance of the trial date so that the warrant may be executed.

CrRLJ 3.3 contains three different bases for obtaining a continuance. First, CrRLJ 3.3(h)(1) provides for agreed continuances which are written, signed by the defendant and effective when approved by the court. Second, CrRLJ 3.3(d)(8) provides for 5 day extensions due to unavoidable or unforeseen circumstances beyond the control of the court or the parties when the defense will not be "substantially prejudiced". Lastly, CrRLJ 3.3(h)(2) authorizes continuances "in the administration of justice" when the defendant's defense will not be "substantially prejudiced." Prosecutors can argue for continuances under both subsections (d)(8) and (h)(2) when a witness, usually the victim, fails to appear. Subsection (h)(2) requires that unforeseen and unavoidable circumstances "are specific, unpredictable, and not self-created." Bellevue v. Vigil, 66 Wn. App. 891, 893, 833 P.2d 445 (1992).

The case law in this area is somewhat "muddled" when the issue of a prosecution's need for a continuance is due to a witness' failure to appear arises. Based upon the court's ruling in Bellevue v. Vigil, 66 Wn. App. 891, 833 P.2d 445 (1992), the following rules can be gleaned from the case law:

1. Unexcused Absences

The "unexcused absence of a subpoenaed witness is not good cause for a continuance. . ." State ex rel. Nugent v. Lewis, 93 Wn.2d 80, 84, 605 P.2d 1265 (1980).

a. Exception: Due Diligence

In State v. Nitschke, 33 Wn. App. 521, 524, 655 P.2d 1204 (1982), the court granted a continuance because the prosecution exercised due diligence in attempting to secure a co-participant's attendance and there was no prejudice to the defense from the delay. Due diligence, in this case, consisted of mailing a subpoena, telephoning the witness and contacting the witness' mother, girlfriend's mother, attorney and probation officer. Other cases make clear that due diligence requires proof that a subpoena was served upon the witness in accordance with the court rules. See, e.g., State v. Hairychin, 136 Wn.2d 862, 968 P.2d 410 (1999); State v. Adamski, 111 Wn.2d 574, 578, 761 P.2d 294 (1988).

b. Exception: Due Diligence and Availability of Witness Within Reasonable Time

In State v. Henderson, 26 Wn. App. 187, 192, 611 P.2d 1365, review denied, 94 Wash.2d 1008 (1980), a continuance was upheld because the prosecution exercised due diligence and there was an expectation that the witness would become available within a reasonable time. The due diligence consisted of issuance of a subpoena and a warrant, officers went to the area where the witness was reported to be, and the aid of other police departments was requested. The "availability within reasonable time" condition is relaxed when the witness is absent due to illness. See, e.g., State v. Koerber, 85 Wn. App. 1, 931 P.2d 904 (1997) (trial judge abused his discretion by dismissing case when key prosecution witness became ill with the flu the day before trial and the prosecution did not know when the witness would become available).

2. Subpoena and Unanswered Phone Call Not Sufficient

In Bellevue v. Vigil, supra, the court found that a subpoena and a telephone call to a domestic violence victim whose line was disconnected was not sufficient for a continuance under either CrRLJ 3.3(d)(8) or (h)(2). The court specifically stated that although "due diligence and availability of the witness within a reasonable time are not explicitly required [by the rules], the trial court may nonetheless consider these factors in the exercise of its discretion." 66 Wn. App. at 895. The court also noted that the defendant's right to a speedy trial had expired and that this was an additional factor supporting denial of the continuance.

3. Potential for Coercion Must be Supported

In Bellevue v. Vigil, supra, the court rejected the City's argument that the potential for coercion and intimidation in domestic violence cases was a sufficient basis for a continuance when a subpoenaed victim failed to appear. Some corroborating evidence of coercion must, therefore, be presented to the court before a continuance can be granted on this ground alone.

4. Other Continuance Issues

State v. Silva, 72 Wn. App. 80, 863 P.2d 597 (1993): 5 day extension granted under CrR 3.3(d)(8) because court congestion is unavoidable and court makes every effort to responsibly manage resources.

State v. Brown, 40 Wn. App. 91, 94, 697 P.2d 583 (1985): 5 day extension granted under CrR 3.3(d)(8) because of prosecutor's scheduling conflict.

State v. Kelley,64 Wn. App. 755, 764, 828 P.2d 1106 (1992): 5 day extension granted to accommodate planned vacation of deputy prosecutor assigned to case where state acted in good faith to reassign the case to next most available deputy prosecutor who was currently in trial.

State v. Raper, 47 Wn. App. at 538, 736 P.2d 680 (1987): Trial court's reliance on erroneous speedy trial expiration date constituted a reasonably unavoidable or unforeseen circumstance justifying an extension under CrR 3.3(d)(8).

State v. Wake, 56 Wn. App. 472, 783 P.2d 1131 (1991): Continuance not permitted day before trial when it would exceed speedy trial period and prosecutor knew two weeks earlier that unsubpoened lab expert would be unavailable and the reason why the expert was unavailable was unknown.

State v. Nguyen, 68 Wn. App. 906, 914-17, 847 P.2d 936, review denied, 122 Wn.2d 1008(1993): Continuance outside speedy trial where necessary witness became temporarily unavailable due to a military call up.

State v. Andrews, 66 Wn. App. 804, 812-13, 832 P.2d 1373 (1992), review denied, 120 Wn.2d 1022 (1993): 1-day retroactive continuance pursuant to CrR 3.3(d)(8) to due to judge's dental emergency.

B. MATERIAL WITNESS WARRANTS

1. Defined

A material witness warrant may be requested pursuant to CrRLJ 4.10 and CrR 4.10. CrRLJ 4.10 provides, in pertinent part that:

(a) Warrant. On motion of the prosecuting authority or the defendant, the court may issue a warrant, subject to reasonable bail, for the arrest of a material witness. The warrant shall issue only on a showing, by affidavit or on the record in open court, that the testimony of the witness is material and that

(1) The witness has refused to submit to a deposition ordered by the court pursuant to rule 4.6; or

(2) The witness has refused to obey a lawfully issued subpoena; or

(3) It may become impracticable to secure the presence of the witness by subpoena.

Unless otherwise ordered by the court, the warrant shall be executed and returned as in rule 2.2.

2. Criteria

In order to obtain a material witness warrant, the requestor must show:

a. Materiality of Testimony

The proposed testimony is material (i.e., likely to influence the determination of the case). CrR 4.10(a); CrRLJ 4.10(a).

b. Witness Not Otherwise Available

The witness refused to obey a lawfully issued subpoena, or it was impossible to subpoena the witness because the witness is homeless, and address cannot be ascertained or a similar circumstance exists. CrR 4.10(a)(3); CrRLJ 4.10(a)(2) and (3).

i. Lawfully Issued Subpoena

A subpoena may be issued by a judge, the clerk of the court, a commissioner or a party's lawyer. CR 45(2); CrRLJ 4.8; CrR 4.8. If a district or municipal court subpoena is for a witness outside the county or counties contiguous with it, the court must approve the subpoena. CrRLJ 4.8(a).



ii. Service

A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness; or by giving a copy of the subpoena to the witness, or by leaving a copy of the subpoena at the witness' abode. CR 45(c); CrR 4.8; CRLJ 45(c); CrRLJ 4.8(c). District/Municipal Court subpoenas may also be served by first class mail, postage prepaid, sent to the witness' last known address. CrRLJ 4.8(c).

When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit. CR 45(c); CRLJ 45(c); CrRLJ 4.8(d)(1). Proof of service by mail may be by affidavit or certification of the person who mailed the subpoena, or by written acknowledgment of service. If the subpoena was mailed, the party seeking a material witness warrant must establish that the witness actually received the subpoena. CrRLJ 4.8(d)(2). Proof can be through a written acknowledgment of service. Proof can also be made orally, through the testimony of the prosecutor as an officer of the court or by an advocate if s/he spoke to the witness and the witness acknowledged receiving the subpoena.

3. Bellevue v. Vigil, 66 Wn. App. 891, 833 P.2d 445 (1992)

In Bellevue v. Vigil, the court held that the trial court did not abuse its discretion by ruling that a subpoena and a telephone call to a domestic violence victim whose phone was disconnected was insufficient to grant a continuance pursuant to CrRLJ 3.3(d)(8) or (h)(2). The case was on expiration and the City had previously received one 48 hour continuance to secure the presence of the witness. The only effort made to reach the witness during the 48 hour period was a telephone call to the disconnected number. The trial court refused to issue a material witness warrant, stating that ". . . absent some type of showing that other available means of securing the witness' presence at trial had proved to be futile, use of this more drastic measure would seem inappropriate." 66 Wn. App. at 896. The court doubted that the Legislature's intent to protect victims of domestic violence would be furthered with the issuance of a material witness warrant absent a showing that other efforts to secure the witness' presence had been exhausted. The court also stated that in order to consider coercion as a factor in a domestic violence victim's failure to respond to a subpoena, there must be corroborating evidence of coercion.

Bellevue v. Vigil does not change the standard for issuance of a material witness warrant, but merely emphasizes the fact that an arrest warrant is an extraordinary remedy, particularly in domestic violence cases.

What could the City have done differently? If could have attempted to contact the victim by any of the following methods: sent a certified letter; had a patrol officer drive by the victim's home or last known place of employment; checked the post office or DOL for any address change; checked with a child's school; left messages at shelters where a victim might appear; called a family member; checked phone company directories or information lines; checked the victim's criminal history to determine whether any open cases existed; checked with CPS to determine if an open case existed and whether it had any contact with the victim; or any other creative efforts which could produce information about the victim's whereabouts. If the City had documented that all or some of these steps had been taken to locate the victim, the court might have been more receptive to the request for a material witness warrant. Efforts to obtain the presence of the victim should be made prior to the trial date and a material witness warrant sought at the time of the first continuance request. Even then, a reviewing court will only overturn a trial judge's denial of a request for a material witness warrant if the trial judge abused his or her discretion.

4. Cautionary Note

There is much debate over the propriety of requesting a material witness warrant when a domestic violence victim fails to appear in court. You may feel that successful prosecution of a defendant is crucial to prevent further violence. On the other hand, arresting the victim serves to re-victimize the victim and could deter future complaints of violence. Often advising the victim of the prosecution's ability to obtain a material witness warrant will provide the incentive for an appearance.

5. Sample Forms

Forms for a "Motion and Certification for Order to Apprehend and Detain Material Witness" and an "Order to Apprehend and Detain Material Witness" are contained in the forms and sample memos appendix.