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What happens if a witness fails to appear in court in Colorado?

Posted by Neil Shouse | Aug 20, 2019 | 0 Comments

If the witness had been subpoenaed to appear in a Colorado court, then failing to appear can result in that witness being held in contempt. This means that the witness could be arrested, jailed, and fined.

If the witness was not subpoenaed, then he/she faces no consequences for not showing up to court.

Subpoenas in Colorado

A subpoena is a court order to appear in court for a proceeding, such as a Colorado jury trial. In order for a subpoena to be valid, it must meet all the procedural requirements of Colorado Rule of Civil Procedure 45. For instance, subpoenas must include the following information:

  • the issuing court
  • the case number
  • the name of the party (and attorney) serving the subpoena
  • the type of proceeding
  • a command for the witness to appear at a certain time and place

Furthermore, a subpoena must be served correctly in order to be legally enforceable. Typically, subpoenas must be made no later than 48 hours before the trial or hearing where the witness is ordered to appear. Additionally, subpoenas may not be served by anyone under 18 or by a party in the case.

If a subpoena is not served correctly and in accordance with Colorado law, then the witness is not obligated to show up to the proceeding.

Failing to obey subpoenas in Colorado

Properly-subpoenaed witnesses who fail to appear may be found in contempt unless they have an "adequate excuse." Examples of an adequate excuse may include being hospitalized or otherwise incapacitated.

The type of contempt that that courts may impose on no-show witnesses is called "indirect contempt" (discussed below).

If the court appearance that the witness misses is a trial, the party which issued the subpoena can then ask the judge to issue a bench warrant. The court is required to comply with the party's request.

Once a bench warrant is issued, the non-appearing witness can be arrested and hauled into court. This bench warrant remains active until either:

  • the case goes to the jury, or
  • the trial is canceled (whichever happens earlier)

If the witness is arrested, the judge may set bail. (Colorado Criminal Procedure 17)

Indirect contempt in Colorado

When a person disobeys court orders "out of the direct sight or hearing of the court," the judge may find that person in "indirect contempt." Not showing up to court as required by a valid subpoena is grounds for indirect contempt in Colorado.

After a witness fails to show up to court as required, the judge may issue a citation to that witness. This citation could order him/her to appear in court at a certain date and time and "show cause" as to why he/she did not appear.

The citation must be served on the witness at least 21 days before the "show cause" hearing. (In addition to the citation, the witness must also be served a copy of the relevant motion, affidavit, and order.) If the witness fails to appear at this "show cause" hearing, the court may issue a bench warrant.

This bench warrant specifies the date and time for the witness to appear in court, and it also sets the amount of required bond (bail). Once a bench warrant is issued, the witness can be arrested and hauled into court at any time. If the witness pays the bond, he/she may remain free as long as he/she shows up to the next court hearing. Otherwise, the sheriff may keep the witness in custody subject to the order of the court. (Colorado Rule of Civil Procedure 107; People v. Razatos, 699 P.2d 970 (1985))

Learn more about contempt of court in Colorado.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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