INGO Lawyers or those who know subpoenaed language...

[CHCRandy]

If you are subpoenaed to a deposition and have not had enough time to secure legal counsel, what are options? Daughter was notified Sunday evening to a hearing tomorrow morning...and we didn't know she should have a lawyer with her until this afternoon. She is a witness(not sure if right term).... in a criminal recklessness charge and the defendants counsel subpoenaed her. The Prosecutor has never spoken to her and the crime was many months ago. She has done taken the day off so she prefers to get it over with, but any advice would be much appreciated. Is there a way to bill for a lost days wages? Thanks

 

[HoughMade]

Is this a deposition or a hearing?

Assuming a hearing, she should not ignore it and should comply. She is owed the standard witness fee (I forget what that is, maybe $40?) plus mileage. She is not owed anything else, but in the civil game, we would typically pay something more. I doubt they would in a criminal case.

How much notice did she get? Has she talked to the defense counsel? What is the purpose of the hearing?

 

[CHCRandy]

Deposition

 

[CHCRandy]

Is this a deposition or a hearing?

Assuming a hearing, she should not ignore it and should comply. She is owed the standard witness fee (I forget what that is, maybe $40?) plus mileage. She is not owed anything else, but in the civil game, we would typically pay something more. I doubt they would in a criminal case.

How much notice did she get? Has she talked to the defense counsel? What is the purpose of the hearing?

Sorry for double post. It is a deposition. She was served Sunday at about 1-2 PM by Sheriff and it is in the morning at 9AM. The defense counsel is who wants the deposition and no she has never spoke with the defense or prosecutor. She did give a statement to the sheriff months ago before any charges were filed against defendant. In my uneducated opinion, the reason for the deposition is the defense is trying to find a way to get their client off the hook for selling heroin to a guy who then OD'd and died. I think they are looking for testimony that they can use to say the deceased guy "could" have gotten drugs elsewhere, and therefore putting the burden on the state to prove their case.

 

[hoosierdoc]

Is there criminal liability if you sell someone drugs and they die in an OD?

 

[HoughMade]

OK, I am not involved in the criminal law world at all anymore, but that does not sound like adequate notice to me. That being said, I would never counsel to ignore a subpoena. If it is possible, she should try to contact an attorney and have that person talk to the parties about rescheduling. If she can’t contact an attorney, I would still see about rescheduling so that she can retain counsel.

I don’t know the situation and I don’t need details, but if it were me, I would like to talk to an attorney before giving sworn testimony. Other than tat, I can’t offer anything.

As for whether there can be criminal liability for selling drugs that results in an OD, yes.

 

[BehindBlueI's]

She is a witness(not sure if right term

I haven't seen a witness bring an attorney to a criminal depo. The prosecutor will object if the defense gets out of hand in questioning. Depos of witnesses are generally just trying to lock them into a statement, and then tailor questions at trial based on that story, by whichever side depo'd the person. An attorney worth hiring knows the answer to any question they ask at trial, so this is just to eliminate the surprise and to formulate their defense based on what they know the answers will be.

 

[HoughMade]

I haven't seen a witness bring an attorney to a criminal depo. The prosecutor will object if the defense gets out of hand in questioning. Depos of witnesses are generally just trying to lock them into a statement, and then tailor questions at trial based on that story, by whichever side depo'd the person. An attorney worth hiring knows the answer to any question they ask at trial, so this is just to eliminate the surprise and to formulate their defense based on what they know the answers will be.

I would say that this is the way it goes most often. My concern is for a person who is giving sworn testimony and does not know the law and does not know what may be self-incriminating or not. Since I know nothing of the underlying facts, I would never assume that this could not be the case.

 

[CHCRandy]

I think it all went well. From the sound of the questions his defense is just trying to get a feel of how to defend the client. I am assuming from the questions they may be jockeying for 1. The user OD'd intentionally to take his own life. 2. He had other drugs in his house that he used.

Some of the questions were like....Can you describe the defendant to us, what he looks like, where he lived? Where they went to meet him? And for the deceased, What was his mood like the night before? Did he have a job? Did work release take him to and from work? If he was happy, sad or upbeat about his future? If he had said if he wanted to get off drugs? Had he ever talked about taking his own life? Did she know if he had any other drugs in the home? If she knew of him buying from other people before?

I personally don't think the State has a chance of proving this.....just so many other variables at play. Who is to say he didnt get more from someone else later that night? They can definitely prove the defendant sold heroin to the deceased (text messages from deceased persons phone) but they didn't charge him with dealing. I think this will be interesting....damn shame these kids put themselves in these avoidable predicaments!

 

[drillsgt]

I think it all went well. From the sound of the questions his defense is just trying to get a feel of how to defend the client. I am assuming from the questions they may be jockeying for 1. The user OD'd intentionally to take his own life. 2. He had other drugs in his house that he used.

Some of the questions were like....Can you describe the defendant to us, what he looks like, where he lived? Where they went to meet him? And for the deceased, What was his mood like the night before? Did he have a job? Did work release take him to and from work? If he was happy, sad or upbeat about his future? If he had said if he wanted to get off drugs? Had he ever talked about taking his own life? Did she know if he had any other drugs in the home? If she knew of him buying from other people before?

I personally don't think the State has a chance of proving this.....just so many other variables at play. Who is to say he didnt get more from someone else later that night? They can definitely prove the defendant sold heroin to the deceased (text messages from deceased persons phone) but they didn't charge him with dealing. I think this will be interesting....damn shame these kids put themselves in these avoidable predicaments!

My daughter just turned 20 and if I found out she was hanging out with heroin users i'd be flipping out.

 

[CHCRandy]

My daughter just turned 20 and if I found out she was hanging out with heroin users i'd be flipping out.

My daughter was 21 when I found out. Trust me, I did flip out. Wouldn't wish it on anyone....

 

[Kirk Freeman]

I haven't seen a witness bring an attorney to a criminal depo. The prosecutor will object if the defense gets out of hand in questioning. Depos of witnesses are generally just trying to lock them into a statement, and then tailor questions at trial based on that story, by whichever side depo'd the person. An attorney worth hiring knows the answer to any question they ask at trial, so this is just to eliminate the surprise and to formulate their defense based on what they know the answers will be.

Suffice to say it happens, especially in sticky conspiracies or . . . dead bodies with the State looking to hang someone.

Prosecutor can object all she wants, questions getting asked and statements going to PA or a Grand Jury.

 

[Kirk Freeman]

Sorry for double post. It is a deposition. She was served Sunday at about 1-2 PM by Sheriff and it is in the morning at 9AM. The defense counsel is who wants the deposition and no she has never spoke with the defense or prosecutor. She did give a statement to the sheriff months ago before any charges were filed against defendant. In my uneducated opinion, the reason for the deposition is the defense is trying to find a way to get their client off the hook for selling heroin to a guy who then OD'd and died. I think they are looking for testimony that they can use to say the deceased guy "could" have gotten drugs elsewhere, and therefore putting the burden on the state to prove their case.

Like most of my clients, you answered your own question. It is within her best interest to contact an attorney at once.

 

[GREEN607]

Sorry for double post. It is a deposition. She was served Sunday at about 1-2 PM by Sheriff and it is in the morning at 9AM. The defense counsel is who wants the deposition and no she has never spoke with the defense or prosecutor.

Of course, your later posts indicate that she has already been deposed.... but my question, regarding the 'short notice' is, did she move/change address between the tome of the event and the time she was served? That could explain the 'late' notice thing.....