SO YOU ARE A WITNESS
To: All Witnesses For The State
From: Thomas M. Smith, District Attorney
You are a witness in a criminal case and as District Attorney, I would like to take this opportunity to familiarize you with the proceedings in a criminal case in order to minimize any apprehension, or inconvenience you may experience as a result of being called to appear as a witness.
IF YOU ARE A VICTIM OF OR A WITNESS TO A CRIME…
Usually, you as a victim will have been required to sign a formal complaint, under oath, that becomes part of the arrest warrant charging the accused with committing a crime. By signing and verifying the complaint, you have indicated your willingness to appear as a witness to appear as a witness to testify in Court if necessary.
A complaint charging someone with a criminal offense should never be signed with the idea of asking the District Attorney to dismiss the charge(s) at a later date. If you have any doubts concerning your further participation in the prosecution of a case, you should contact the District Attorney’s Office and discuss the matter with us.
If you are the victim of a crime, it is NOT necessary for you to hire an attorney to represent you in the criminal prosecution of the case. You are not considered a party, but rather a witness for the state, and will be represented at trial by the District Attorney.
FEARS AND THREATS
Concerns about your well being and safety after being victimized or witnessing a crime are normal. If you have any fears or receive any threats concerning your involvement in a case, you should immediately contact your local law enforcement agency. There are laws to protect you against people who attempt to bribe, intimidate, threaten, or harass you.
THE ROLE OF THE ATTORNEYS
The District Attorney represents the State of Alabama in criminal prosecutions. The defense attorney represents the accused. Together, they represent the “parties” in the case. These attorneys may want to discuss the case with you. If you have any questions as to who you should or can talk to, please call the Deputy District Attorney assigned to your case.
A subpoena is a court order directing you to appear in court at a particular time and place. It may be delivered to you by mail or in person. It does not mean that you are charged with an offense. Its purpose is to call you to court so that you may tell what you know about the case.
When subpoenaed, it is your duty to appear in court. If you fail to appear, the Judge has the option of holding you in contempt. Contempt of Court is punishable by fine or possible jail time. Inform your employer that you have been called to testify and arrange to be absent from work for a period of time. Your employer cannot legally discharge, punish, or threaten you for attending a criminal proceeding when you have been subpoenaed.
Nobody has yet devised a good system by which all inconvenience for witnesses can be avoided. In order to minimize the time in which your presence in court will be required, our office maintains an “ON CALL” service for witnesses. You MAY be placed on call, at the discretion of the Deputy District Attorney assigned to your case; however, the process must be conducted in the following manner:
- After you receive your subpoena, call the District Attorney’s Office at (205) 349-1252 and request to be placed on the “ON CALL LIST.”
- You will be asked for a telephone number (or numbers) where you can be reached during the week of the subpoena and will be notified by the District Attorney’s Office if your testimony becomes necessary.
- It will not be necessary for you to come to the courthouse until you are notified. It is important to remember, however, that if you are placed on the “ON CALL LIST,” you MUST be able to arrive at the courthouse within one hour after notification by telephone. Other arrangements MAY be made for witnesses who must travel long distances.
The “ON CALL” procedure applies ONLY for trial of the case in Circuit Court and is NOT available for preliminary hearings or Grand Jury. If, at any time before the case is disposed of, you should move from your current address or change your telephone number, please call the District Attorney’s Office and update your information with us. THIS IS VERY IMPORTANT!
TYPES OF CRIMINAL OFFENSES
VIOLATION—an offense against the state, punishable by a term of imprisonment no exceeding 30 days and/or a fine.
MISDEMEANOR—an offense against the state, punishable by imprisonment in the county jail of up to one year and/or a fine.
FELONY—most serious class of criminal offense punishable by imprisonment in the state prison system for more than one year. Additional fees and fines may be imposed.
STAGES IN A CRIMINAL PROSECUTION
The primary states involved in processing a criminal case are summarized below to help you understand what happens when a person is accused of a crime.
–In cases involving misdemeanor offenses, usually your first and only appearance in court will be for the actual trial.
–In a felony case, your first appearance as a witness may be for a preliminary hearing. This hearing is not held to determine the innocence or guilt of the accused but merely to determine whether there is sufficient evidence to charge the defendant with a crime. If the judge determines that the evidence establishes sufficient probable cause to believe the accused probably committed the crime for which he/she is charged, the judge will refer the case to the Grand Jury. In this event, the judge may order the accused to be imprisoned or released on bail.
–The Grand Jury is a group of 18 citizens randomly selected to hear evidence about crimes allegedly committed within the county. They will decide whether there is sufficient evidence to charge the accused with a crime and require him/her to stand trial. If sufficient evidence is found, the Grand Jury will issue an indictment, which is the official document that charges the individual with a crime. These proceedings are not open to the public and unlike preliminary hearings, the accused and his lawyer are not present when you testify. Only those witnesses summoned will attend.
–In most cases, pretrial motions are prepared by the defense or prosecuting attorneys. Occasionally, you may be called upon to testify at hearings regarding such motions.
–The accused charged with a criminal offense is entitled to an arraignment prior to trial. In felony cases, arraignment is held after the Grand Jury returns an indictment. It is at this point that the judge informs the defendant of the charge(s) against him/her and asks how the defendant pleads. The defendant enters his plea and a trial date may be set at that time. As a witness, you are NOT required to be present at the arraignment.
–It may be necessary to postpone a hearing, trial, or other proceeding until another day or time. We will do our best to notify you in advance when we are aware of such a situation. Such a postponement is called a continuance. If the trial of a case is continued, you will be notified of the date to which the case has been reset and when you are expected to appear.
–Many cases are settled before the trial by the defendant pleading guilty to the charge(s). This is a process whereby the defense counsel and the prosecutor settle the case in a mutually agreed upon manner, subject to the approval of the Court. When a defendant pleads guilty and is sentenced by the court, judicial time is saved and expense is greatly reduced, thus saving taxpayer dollars. You will be notified of this development when/if it occurs. Should you wish to have input into this process, please notify the Deputy District Attorney assigned to your case. Otherwise, with the vast number of cases dealt with by this office, you might not be notified in some instances.
The trial is the most important part of your criminal justice system. In a trial, the guilt or innocence of the accused is determined by either a judge or a jury, after hearing all the testimony from the State’s witnesses as well as any witnesses the defendant may present on his behalf. It is absolutely essential that you, as a witness for the State of Alabama, be present and testify.
Misdemeanor cases are tried initially in District Court before the judge and without a jury. If the defendant is found guilty, he may appeal to Circuit Court for a new trial. At the Circuit Court level the defendant has the option of a jury trial at his request. If the defendant goes to Circuit Court, you may be summoned to Court again as a witness.
The trial of a felony case begins in the Circuit Court and is usually heard by a jury of twelve people, randomly selected, who will determine the guilt or innocence of the accused. The jury makes its decision based on the testimony of witnesses and evidence during the trial.
All felony cases to be tried in a given week are set for trial in the early part of the week. We usually have two Circuit Judges trying felony cases and because of variables such as unavailable witnesses and the length of time it will take to try a given case, it is necessary that more cases be docketed than can actually be tried that week to insure that a maximum number of cases will be disposed of. This may result in some cases remaining undisposed of at the end of the week. These undisposed of cases will be re-docketed for trial at a later date.
When a case is set for a given Monday, the case may come up for trial any day that week. Cases set for a given week are usually disposed of in numerical order.
Trials are usually open to the public. As a witness, you will be entitled to hear the case in its entirety unless the judge or one the parties invokes what is commonly known as “The Rule.” When The Rule is invoked, witnesses will not be allowed in the courtroom until they are called to testify. However, any victim who will be called as a witness is allowed to remain in the courtroom during the course of the trial. As a non-victim witness, do not be offended if you are not allowed to remain in the courtroom during the trial. The purpose of this rule is to assure that the testimony of one witness is not influenced by what other witnesses say on the stand.
The trial of a criminal case in Circuit Court follows the procedure outlined below:
–The opening statements outline the proof expected to be presented to the jury.
Opening statements are not evidence, but are only explanations by the attorneys of what each side expects the evidence to prove.
–After the opening statements, the District Attorney presents the evidence on behalf of the prosecution referred to as the state’s case. This begins with the District Attorney’s direct examination of a witness. Next, the defendant’s
attorney may cross-examine the witness. Upon completion, the District Attorney may again question the witness. This is called redirect examination.
–The defendant’s case is presented after the state has presented its evidence and follows the same format as the state’s case. This is the usual procedure; however, the defendant need not present any evidence if he/she so chooses. The defendant is not required and cannot be made to testify.
–At the conclusion of the defendant’s case, closing arguments will be presented. Closing arguments are not evidence, but are only summaries by both sides of the evidence presented during the trial from their respective viewpoints.
–The judge’s charge to the jury follows closing arguments. At this time, the judge will instruct the jury on the issues to be decided and the rules of law that apply to the case.
–Jury Deliberations begin after the judge’s oral charge. At this time, the jury begins considering the evidence and decides whether the defendant is guilty or not guilty.
–Jury deliberations are concluded when a unanimous verdict has been reached. The foreman of the jury records the verdict calls the bailiff to escort the jury to the courtroom. The verdict is then announced.
Sometimes, jurors cannot reach an agreement on the verdict in a case. This is called a “hung jury.” In Alabama, when this happens, the trial judge may give the jury further instructions on the importance of reaching a verdict. If the court determines that the jury is hopelessly deadlocked, the judge may declare a mistrial. A mistrial means that a new trial may be held.
SENTENCE AND PUNISHMENT
If a defendant is convicted of a criminal offense, the judge will determine the appropriate sentence. Sentencing may occur immediately following the jury’s verdict or at a future hearing following the preparation of an investigative report. At sentencing, the judge will explain the terms of the sentence to the defendant and advise him of his right to appeal the conviction. As a victim or witness, you may be present at the sentencing if you wish. Please notify the Deputy District Attorney assigned to the case and our Victim/Witness Service Officer if you wish to be present at sentencing.
If the defendant is found guilty of committing a crime, he/she may be required to go to jail or prison for a certain length of time. A person found guilty of committing a misdemeanor is sent to the county jail. A person found guilty of committing a felony is sentenced to serve time in a state penitentiary, or in certain instances, in the county jail. Any time spent in jail by the defendant while awaiting trial must be credited against the defendant’s sentence. A defendant can request that he/she be considered for probation and the judge must then set a hearing date.
The court may impose a fine in addition to a prison sentence. The fine is paid to the court, not to the victim and is considered part of the punishment.
APPEAL FROM CIRCUIT COURT
If a defendant desires to appeal a conviction, the judge MAY release him on bail until the Court of Criminal Appeals makes its decision. If the appeal is taken, you will not be required to appear as a witness before the appellate court. However, some cases are returned to the trial court for additional proceedings. You will be notified if your testimony is needed again.
SUGGESTIONS TO WITNESSES
Before coming to court
If you are going to testify about records, familiarize yourself with them before the hearing or trial.
Do not try to memorize what you will say in court, but try to recall just what you observed at the time of the incident.
On the day you are called to court
If you have been summoned by subpoena, BRING IT TO COURT WITH YOU. The subpoena will provide information on when and where to appear.
The trial of a criminal case is a serious matter. While in the courthouse, conduct yourself in a dignified manner.
A neat appearance and conservative dress are appropriate for the courtroom. Dress such as you might to go to church on Sunday or a similar occasion.
When you are called to the stand
Do not be nervous; there is no reason to be.
You will be asked to take an oath to tell the truth. Remember the seriousness of this oath during the entire time you are testifying. If you willfully fail to tell the truth while testifying, you will be subject to criminal penalties for perjury. ALWAYS tell the truth as you know it to be.
If asked whether you have discussed the case with anyone, you should indicate any occasion that you have talked with the prosecutor, the defense lawyer, or anyone else.
When answering questions, speak clearly so you will be heard and understood. The court reporter must hear and record your answers; therefore, do not respond by shaking your head “yes” or “no.”
Listen carefully to the questions. Before you answer, make sure you understand what has been asked. If you do not understand, ask that the question be repeated or rephrased.
Do not give your personal opinions or conclusions when answering questions unless specifically asked to do so. Give only the facts as you know them, without guessing or speculating. If you do not know, say you do not know. There is nothing wrong with this.
If you realize you have answered a question incorrectly, ask the judge if you may correct your error.
If the judge interrupts or an attorney objects to your answer, stop answering immediately. Likewise, if an attorney objects to a question, do not begin your answer until the judge tells you to do so.
Be polite while answering the question. Do not lose your temper with the attorney questioning you. Remember, you are testifying for the benefit of the jury, not the attorneys.
You should NEVER attempt to talk to a jury about the case or any other matter while the case is being tried. This includes chance meetings during recesses, in hallways, at lunch, or any other place.
Appearing as a witness is an obligation which every person can discharge with a conviction that he/she is making a valuable contribution to the society in which he/she lives. We recognize that fulfilling this obligation may cause you inconvenience, but we will do everything possible to minimize this inconvenience as much as possible.
Our Victim Service Officers are available to help you in any way possible during your service as a witness. If you have any questions or concerns, please don’t hesitate to contact us. We appreciate your cooperation.
Victim Service Officer
Office of the District Attorney
410 County Court House (4th Floor)
Tuscaloosa AL 35401-1894