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Question about a subpoena to testify

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Rwedunyet

Member
What is the name of your state (only U.S. law)? North Carolina

I have been subpoenaed to testify in a criminal matter against my brother. Since I am only a witness, there is no legal representation for me on this. The DA's office has requested a meeting with me with an intention of discussing what happened and going over my testimony. I will attend this meeting next week.

However, the defense lawyer has also requested to speak with me as well (on a message left on my phone).

I am confused. I thought that if one lawyer subpoenaed a witness, then that witness was off limits to the other lawyer? To be honest, I'm not sure WHERE I got that idea, but it's there nonetheless.

I have not spoken directly with either the DA or the defense as of yet, and will not until I know what I am supposed to do here.

I am willing to admit that the defense may not yet be aware that I have been subpoenaed and is trying to use me for their side.

What do I do? I've thought about it all weekend, and just cant make sense of it.

I'm pretty nervous about the whole thing. I'm so sick of court, and am hoping that this is not going to be another huge court battle. He's charged with felony habitual DUI, and a myriad of other charges as well. I've just done civil court before, and have never sat in criminal court before. We were allowed to be pretty free with testimony in the civil custody matter.

Will the DA tell me how to testify? Is it true that I should only answer with "yes" or "No", or will I be able to expand on my answers?
What do I do if neither yes or no is appropriate? For example if I am asked "Did your brother tell you that his vehicle was not street legal?" I cannot answer with either one, because what he told me was the strength of the engine but I knew that it was not legal for him to drive that vehicle.
Also, in re-reading the subpoena, it states that the subpoena "stands until resolution of this issue". Does this mean that I am considered under subpoena until the verdict is given?
 


Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? North Carolina

I have been subpoenaed to testify in a criminal matter against my brother. Since I am only a witness, there is no legal representation for me on this. The DA's office has requested a meeting with me with an intention of discussing what happened and going over my testimony. I will attend this meeting next week.

However, the defense lawyer has also requested to speak with me as well (on a message left on my phone).

I am confused. I thought that if one lawyer subpoenaed a witness, then that witness was off limits to the other lawyer? To be honest, I'm not sure WHERE I got that idea, but it's there nonetheless.
Wrong. All attorneys involved can talk to the witnesses. You don't have to talk to any of the attorneys until the day you arrive at court. But if you don't, expect them to ask the court to consider you a hostile witness.

I have not spoken directly with either the DA or the defense as of yet, and will not until I know what I am supposed to do here.

I am willing to admit that the defense may not yet be aware that I have been subpoenaed and is trying to use me for their side.
You don't know how subpoenas work, do you? The prosecution has told the defense they are calling you.

What do I do? I've thought about it all weekend, and just cant make sense of it.

I'm pretty nervous about the whole thing. I'm so sick of court, and am hoping that this is not going to be another huge court battle. He's charged with felony habitual DUI, and a myriad of other charges as well. I've just done civil court before, and have never sat in criminal court before. We were allowed to be pretty free with testimony in the civil custody matter.
Criminal court is more strict.

Will the DA tell me how to testify? Is it true that I should only answer with "yes" or "No", or will I be able to expand on my answers?
The DA cannot tell you how to testify. What you can to do is answer the question. The DA cannot ask you leading questions (those that have the answer in them).

What do I do if neither yes or no is appropriate? For example if I am asked "Did your brother tell you that his vehicle was not street legal?" I cannot answer with either one, because what he told me was the strength of the engine but I knew that it was not legal for him to drive that vehicle.
The answer to that question was NO. Why? Because your brother did not tell you that his vehicle was not street legal. He told you the strength of the engine. You pussy foot around like that and you will be easily made to appear like a liar. Your independent knowledge doesn't enter into what your brother told you. The question is specifically about what your brother said or didn't say. Not about what other information you have. YOU ANSWER THE QUESTION ASKED. Don't answer the question you want them to ask you.


Also, in re-reading the subpoena, it states that the subpoena "stands until resolution of this issue". Does this mean that I am considered under subpoena until the verdict is given?
You are considered under subpoena until you are released from the subpoena which means either until the verdict or settlement OR until the court releases you. What this means is you will not be sitting in the courtroom until after you are released. If that means you are sitting in a hallway for four days so be it.
 

Rwedunyet

Member
Thank you for the clarification and information. (and no, I have no idea how subpoenas work, I've never done this before....had never been in a courtroom at all until this year).

I have no idea what it would mean to be considered a hostile witness, but I don't like the sounds of it. As long as it's OK for me to cooperate with both sides, that's what I'll do. I just want this over and done.

Egads! I hope that I'm not sitting anywhere for four days.

Thanks again. Not really what I wanted to hear, but it is what it is.
 

Ohiogal

Queen Bee
Thank you for the clarification and information. (and no, I have no idea how subpoenas work, I've never done this before....had never been in a courtroom at all until this year).

I have no idea what it would mean to be considered a hostile witness, but I don't like the sounds of it. As long as it's OK for me to cooperate with both sides, that's what I'll do. I just want this over and done.

Egads! I hope that I'm not sitting anywhere for four days.

Thanks again. Not really what I wanted to hear, but it is what it is.
Criminal court will have attorneys making objections more often and following the rules of evidence more strictly. You will not be allowed in the trial before you testify -- a separation of witnesses is standard -- which means all witnesses are in the hall. Answer only the question asked.

Q: Do you drive a car?
A: That would be yes or no. If you drive a truck, then no. A truck is a not a car.
Do not answer what you want the question to be, example:
Q: Do you drive a car?
A: I drive a 2014 Ford F 150.

Any attorney worth their salt will follow up if they don't like your answer.
The prosecutor will be asking open ended questions as he has called you.
Q: What do you drive?
A: A 2014 Ford F 150.

Listen to the question. If you don't understand the question, ask for clarification. If you don't know the answer, answer, "I don't know."
Don't search for answers or what you think they want to hear or what you want to answer.

If you are declared a hostile witness, it will be done on the record and declared in open court. The judge will then determine outright if you are a hostile witness. That changes the way questioning is done. Then you have all the attorneys in the room jumping on your every word and trying to steer your testimony.
 
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Rwedunyet

Member
Thanks.

It sounds pretty intimidating.

I am dreading it, but looking forward to being one step closer to finished.

If he is found guilty, will he be sentenced on the same day (he is already in jail and will still be at the time of this trial)?
 

Ohiogal

Queen Bee
Thanks.

It sounds pretty intimidating.

I am dreading it, but looking forward to being one step closer to finished.

If he is found guilty, will he be sentenced on the same day (he is already in jail and will still be at the time of this trial)?
Not usually but it is possible. Usually sentencing is done at a later time.
 

justalayman

Senior Member
Take ohiogal's words to heart. They are those of training and experience and as such very valuable n

From a layman's position, I can tell you it can be intimidating but there is no need to allow it to be. You are not on trial. Lying obviously is really bad thing so don't even let it cross your mind.

It's no worse than giving a speech in school. Ignore anything not immediately of concern; the judge is of supreme importance. When s/he talks EVERYBODY else stops talking and listens. If somebody other than the person asking you questions speaks up, stop talking but do NOT address them or especially do not respond to a question or concern they may make. If somebody "objects"'(actually is a lot like tv in that part, at least the not overly dramatized shows), you stop talking until the judge says what to do.

There are no grades given. There are no wrong answers except for lies

Pay special attention to ohiogal's directions concerning not reading more into a question. Answer only what is asked and then STOP talking until asked another question, regardless of how awkward it may feel. If the person questioning wants more of an answer, they will ask another question or for more of an answer for the question asked.
 

Rwedunyet

Member
Thanks.

I am not the least bit interested in lying for my brother or for any other reason. I certainly dont want to be caught lying and end up being charged with perjury.

I'll tell you what I am worrying about today.....it sounds childish I guess, but I am awful with dates. I *know* that if someone asks me a question that requires me to recall and state a specific date, I will mentally freeze and not be able to remember the correct month or blurt out some stupid date like April 18, 1932 or something. Lol, I know it's silly, I cant help it.

I hope that the Judge will be kind enough to tell me outright if I can answer after an objection. Sustained or Overruled or if I need to wait for the question to be re-phrased.

From what the DA has told me, there will be a Judge that is patient and considerate at the bench that day. That does settle my nerves a little.

Honestly, I am surprised at myself. I don't generally get nervous. I have to teach a class to some seasoned photographers next week, and am not in the least bit nervous about that. Of course, they cant throw me in jail, but they can still be pretty brutal.

Anyway, I'm not sure why I am so nervous about this. Perhaps it's just fatigue. I'm pretty tired of the whole "being against my brother" in court thing. Too Jerry Springer for my taste. I don't really want to be a witness, but if I must, then I do want to be as reliable as possible.

Thanks for the advice. I'm "listening" and taking heed, perhaps it will keep me from making a total fool of myself.
 

justalayman

Senior Member
answer to your best ability. Do not guess unless specifically asked to guess. If you do not recall,say that. If they want to continue the line of questioning in a different fashion to attempt to establish a date or timeline, let them worry about how to do it. You only know what you know.

I hope that the Judge will be kind enough to tell me outright if I can answer after an objection. Sustained or Overruled or if I need to wait for the question to be re-phrased.
somebody is going to tell you. In a criminal trial, it will most likely be the judge.


From what the DA has told me, there will be a Judge that is patient and considerate at the bench that day. That does settle my nerves a little.
during a trial, judges tend to be fairly quiet. In some trials, you would hardly know they are there. Unless there are issues, an occasional direction is about all they need to speak about.

Honestly, I am surprised at myself. I don't generally get nervous. I have to teach a class to some seasoned photographers next week, and am not in the least bit nervous about that. Of course, they cant throw me in jail, but they can still be pretty brutal.
a judge cannot throw you in jail either unless you commit a crime. As long as you don't go and commit a crime, nothing more to worry about than at your photog class.


I bet you will be surprised. Once this is over you are going to wonder why you got so nervous.
 

latigo

Senior Member
What is the name of your state (only U.S. law)? North Carolina

I have been subpoenaed to testify in a criminal matter against my brother. Since I am only a witness, there is no legal representation for me on this. The DA's office has requested a meeting with me with an intention of discussing what happened and going over my testimony. I will attend this meeting next week.

However, the defense lawyer has also requested to speak with me as well (on a message left on my phone).

I am confused. I thought that if one lawyer subpoenaed a witness, then that witness was off limits to the other lawyer? To be honest, I'm not sure WHERE I got that idea, but it's there nonetheless.

I have not spoken directly with either the DA or the defense as of yet, and will not until I know what I am supposed to do here.

I am willing to admit that the defense may not yet be aware that I have been subpoenaed and is trying to use me for their side.

What do I do? I've thought about it all weekend, and just cant make sense of it.

I'm pretty nervous about the whole thing. I'm so sick of court, and am hoping that this is not going to be another huge court battle. He's charged with felony habitual DUI, and a myriad of other charges as well. I've just done civil court before, and have never sat in criminal court before. We were allowed to be pretty free with testimony in the civil custody matter.

Will the DA tell me how to testify? Is it true that I should only answer with "yes" or "No", or will I be able to expand on my answers?
What do I do if neither yes or no is appropriate? For example if I am asked "Did your brother tell you that his vehicle was not street legal?" I cannot answer with either one, because what he told me was the strength of the engine but I knew that it was not legal for him to drive that vehicle.
Also, in re-reading the subpoena, it states that the subpoena "stands until resolution of this issue". Does this mean that I am considered under subpoena until the verdict is given?
It seems clear to me that the state's attorney is interested in talking to you about the "myriad of other charges” that your brother is facing and not the "habitually impaired driving".

And since you haven’t seen fit to explain the other counts and what knowledge you may possess regarding same and your possible culpability, my suggestion is this:

Tell the DA that if he insists on meeting with you prior to court that you will do so only in the presence of your attorney and the attorney for your brother (should he or she wish to be present).
 

tranquility

Senior Member
I recall the police academy. While standing at attention for the umpteenth time and for far longer than usual, I had a semi-insane man who could probably kill me with his pinky scream in my face, "Do you know how many judges are on the Supreme Court? "

I swear to you, my best answer was "yes" and not "nine".

Swear. To. God.

Actually, "yes, sir."
 

justalayman

Senior Member
I recall the police academy. While standing at attention for the umpteenth time and for far longer than usual, I had a semi-insane man who could probably kill me with his pinky scream in my face, "Do you know how many judges are on the Supreme Court? "

I swear to you, my best answer was "yes" and not "nine".

Swear. To. God.
that is cool under pressure as it is obviously the correct answer but...

did he think it was the correct answer?

That is often more important than actually providing the factually correct answer, at least when a semi-insane man who could probably kill you with his pinky and is screaming in your face asking the question.



Of course you could have really pissed him off by asking if he meant the US SC or the Cal Supreme court (presuming you were in California)
 

tranquility

Senior Member
It was the correct answer. No, I did not choose to anger the man. In fact, in order to have him leave me alone, I pretended to start to say "ni...", stopped for a moment and said "yes, sir". Totally on purpose. Once you understand their trick, it wasn't too hard to defeat the Man.
 

Rwedunyet

Member
It seems clear to me that the state's attorney is interested in talking to you about the "myriad of other charges� that your brother is facing and not the "habitually impaired driving".

And since you haven�t seen fit to explain the other counts and what knowledge you may possess regarding same and your possible culpability, my suggestion is this:

Tell the DA that if he insists on meeting with you prior to court that you will do so only in the presence of your attorney and the attorney for your brother (should he or she wish to be present).
I am sure that the DA wants to talk to me about both the "myriad" as well as the Habitual DUI.

As for as the other charges, I don't know the whole list**************.but they include the DUI, driving on a revoked license, improperly registered vehicle, evading, assualt on a female, assault on a police officer, and possession of drug paraphernalia.

My own culpability is not in question. I am a witness to many of the previously listed charges, as well as the victim in the assault on a female charges. As far as the knowledge that I possess, much of it will be eyewitness testimony, as well as background information on my brother.

I'm not comfortable giving much information about what I know, but I will tell you the sequence of events. My brother was drunk and angry at me for "taking his kid", and hit me, as well as attacking me sexually in order to "teach me a lesson" (this occurred at my mother's home). I knee'd him in the groin and ran. He also ran, got on his illegal scooter (too many cc's or something like that), and wrecked it when he struck another vehicle. He was not injured, fled the police and returned to my home. It was there that the police caught up with him, and when they attempted to arrest him, he punched one of the policemen in the stomach.


To be honest, I am working hard to not be irritated at your comment " And since you haven�t seen fit to explain the other counts and what knowledge you may possess regarding same and your possible culpability". I do understand that you are not aware of the whole situation, and when I swallow back my smart retort and think for a minute, I'm not positive that you meant that as snarky as it sounded, just as I dont mean the next comment as snarky as it sounds. The reason that I didnt see fit to explain what knowledge I possess is that I was sexually assaulted by my brother. Not a pleasant thing to share with anyone. I suppose that I need to get over it, as I am sure that I will have to disclose it all to everyone in the courtroom next month.

All that said, do you still feel that I need to have my own lawyer present? and WHY would I want to have my brother's lawyer present? (honest questions, not sarcasm)
 

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