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Law 101: Legal Guide for the Forensic Expert

Failure to Appear

If a witness is unable to appear on the date requested on the subpoena because of a reasonable conflict, immediate notification of those involved is recommended. Often, the appearance can be rescheduled. A witness may be excused or released from his or her obligation to appear by the attorney (i.e., the prosecutor, plaintiff's attorney or defense attorney) who requested that the subpoena be issued, or by the court. The circumstances for a witness to be excused or released from appearing may vary, depending on the jurisdiction. In some cases, the attorney issuing or requesting the subpoena can release the witness, provided that the attorney consults with and/or notifies opposing counsel. In other circumstances, particularly during trial, only the court can release the witness. If that is not possible, the witness remains legally bound to appear and may be held responsible for a failure to appear.

In rare cases, the witness's failure to appear may result in the witness being found in contempt of court. [1] However, a party failing to produce his or her witness when required may be subject to sanctions.

A witness and the attorney calling the witness may agree that the witness will appear at a proceeding, despite not being personally served a subpoena in advance. This is done for a variety of reasons, from accommodating the witness's schedule to having flexibility for all concerned, given the tentative nature of court dockets. The witness must still be fully prepared to appear and testify, regardless of the potentially short notice in such instances.

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