Will George and Cindy Testify?

[Chezhire]

They haven't been charged with a crime (yet) why would they be able to plead the fifth?
I'm no legal eagle but I don't think they can plead the fifth as the case stands today. Of course that is subject to change. Please anyone let me know if I'm wrong. TIA

Would they have to be charged or just questioned?

Likely if they won't testify by their own choice they would be subpeoned as a hostile witness by the prosecution and then probably plea the 5th to avoid testimony, correct?

I didn't know if they could- but isn't there such a thing as a hostile witness and is that not similar to pleading the fifth?

So if they either plead the fifth or are hostile witnesses, they will not have the opportunity to perpetuate Casey's lies.

So where does that leave the defense?

I'm 99% certain that Casey will not testify- so would that not make the case open and shut?

I've discussed this issue in another thread, in regards to the giving of depositions, here: http://www.websleuths.com/forums/showthread.php?t=76149&page=3

The rules are the same regardless of whether it's a deposition or a trial. Basically, if the question posed to a witness seeks information that could subject he/she to prosecution for a crime, he/she may invoke the Fifth Amendment. There does not have to be a bill of information or an indictment pending against the witness.

A hostile witness is one who's position is adverse to your client's position, and the practical advantage to a witness being characterized as such is that you can question them by leading questions (i.e., yes or no questions,) instead of open-ended questions (i.e., "tell us about such-and-such...,") which makes getting the necessary testimony from the likely-to-be-uncooperative witness a little easier (i.e., you don't have to sit and listen to the ramblings of the witness in the hopes that the answer is somewhere in the response and that your jury/judge is paying attention at that moment.)

 

[Chezhire]

It is interesting that he found it necessary to hire a separate attorney.

It's more likely that no attorney would accept both his representation and that of his parents (as opposed to Lee personally finding it necessary to do so.) Just asking for a huge potential for a conflict, given the fact (pun intended) that we know so little facts about what really happened to cause Caylee's death...

 

[LaLaw2000]

Proper? yes. Always required by the Code of Procedure? Nope, not here in Louisiana.

Any FL legal eagles want to chime in for me re: FL's Codes of Civil & Criminal Procedure re: whether one MUST subpoena witnesses for trial?

Hi, Chezhire! I am in Louisiana also and know that if it is a criminal trial that each witness has to have a formal subpoena served to them.

 

[Chezhire]

SNIPPED: " ... Invoking your 5th Amendment right is refusing to testify because your testimony could be used as evidence of your own criminal activity. It only applies to you - for instance, Cindy could not legally refuse to testify because her testimony would implicate Casey, only if her testimony would implicate herself. There are rules that also allow this to apply to spouses, you can look up what Florida does on this subject as again states vary.

To add to this, ALL of the rights contained in the United States Constitution are personal rights and as such can only be invoked by a person on his/her own behalf. (Can you imagine what would happen if every time a parent's child tried to waive his/her right to invoke the 5th Amendment so as to plead guilty and the parent was able to invoke it for him/her? )

Re: the spousal privilege, which allows a spouse to invoke a statutorily based privilege (this is, I repeat, NOT a Constitutionally based right, rendering it different that the 5th Amendment) and refuse to answer a question b/c said answer might incriminate his/her spouse. It can ONLY be invoked by the spouse who possesses information/knowledge that could incriminate his/her spouse. For example, husband is arrested and wife knows what husband did. ONLY the wife may invoke the spousal privilege - it is hers alone and she alone retains the statutory right to choose whether or not to waive or invoke same. Husband may NOT prevent her from waiving it, nor can he force her to invoke it. So you see, this, too, is purely personal, and is based in statutory law instead of the Constitution.

Does that clarify?

 

[absolut_alexis]

Proper? yes. Always required by the Code of Procedure? Nope, not here in Louisiana.

Any FL legal eagles want to chime in for me re: FL's Codes of Civil & Criminal Procedure re: whether one MUST subpoena witnesses for trial?

(1) Subpoenas for witnesses in criminal cases shall run throughout the state and be directed to all of the sheriffs of the state. (2) When possible, the names of all witnesses summoned for, or at the cost of, the state in a criminal case shall be included in one subpoena, and the prosecuting officer shall, when possible, include the names of all such witnesses in one praecipe for such subpoena.

 

[Chezhire]

Hi, Chezhire! I am in Louisiana also and know that if it is a criminal trial that each witness has to have a formal subpoena served to them.

:wave: Hiyah, LaLaw2000! Good company this morning.

With all due respect, I've called witnesses to testify who weren't subpoenaed. :waitasec:

 

[Chezhire]

(1) Subpoenas for witnesses in criminal cases shall run throughout the state and be directed to all of the sheriffs of the state. (2) When possible, the names of all witnesses summoned for, or at the cost of, the state in a criminal case shall be included in one subpoena, and the prosecuting officer shall, when possible, include the names of all such witnesses in one praecipe for such subpoena.

Absout_alexis, thanks for answering my call for a FL attorney, and thanks for the answer. :blowkiss:

What FL statute/evidentiary/procedural article are you quoting?

 

[Themis]

Hi, Chezhire! I am in Louisiana also and know that if it is a criminal trial that each witness has to have a formal subpoena served to them.

That is the kind of thing you would find in a States Attorney's or District Attorney's office policy manual and not in the rules of criminal procedure.

 

[Chilly Willy]

impatientredhead: I'm assuming you're a "FL legal eagle" since you responded to my request for some help from one. (If this isn't the case, sorry for the assumption.)

I know how I usually handle this issue, which I've discussed already in my earlier posts, above (*b/c sometimes, when my witness list is rather lengthy, which it usually is b/c I list all potential witnesses and, therefore, a list of 30-40 for starters is not unusual, and I don't want to tip off opposing counsel as to exactly who will be appearing to testify, and the witness at issue is a friendly witness whom the client trusts will appear, we handle it by written agreement behind the scenes instead of issuing a subpoena, which immediately places opposing counsel on notice as to exactly who of the 20+ witnesses will be appearing, ,) but I want someone with access to the FL statutes to tell me definitively.

Did you actually check the FL codes of civil & criminal procedure or are you just chiming in as a general matter?

If you had time to check (which I don't right at this moment) the FL codes of civil & criminal procedure, could you throw up snippets?

You aren't required to provide a witness list prior to the trial?

 

[Chezhire]

Which would, of course, be something they did on their own - extrajudicially. Not relying on Court to get the specific appearance of the witness, rather, getting the witness to agree to either appear voluntarily OR pay some agreed amount and not testify.

I'm not talking about getting a witness to "pay some agreed amount and not testify." I'm talking about the witness you intend to have testify, but who prefers not to be subpoenaed (for whatever reason, and I've heard a plenty) and will sign a contract to ensure same or to be liable for damages resulting from their failure to appear. There are legal ways to do this, you just have to know what you're doing and you (obviously) CANNOT bribe witnesses either into appearing or not appearing. (Course, I'm not going to help the defense out here, and the SA doesn't need any help, so I'm not going to get into the how's of doing this, the disclosure issues, etc. )

 

[absolut_alexis]

You are most welcome; I am not an attorney, I don't even play one on TV, but I am closely related to several ... FL Criminal Procedure & Correctins Code ... 914...

Absout_alexis, thanks for answering my call for a FL attorney, and thanks for the answer. :blowkiss:

What FL statute/evidentiary/procedural article are you quoting?

 

[Chezhire]

You aren't required to provide a witness list prior to the trial?

Yes, you do. (My post above talks about listing all witness - this was what I was referring to.) We were talking about whether you "have" to issue a subpoena for trial witnesses.

 

[Chezhire]

You are most welcome; I am not an attorney, I don't even play on on TV, but I am closely related to several ... FL Criminal Procedure & Correctins Code ... 901.04.

:blowkiss: thanks again!

 

[Chilly Willy]

Yes, you do. We were talking about whether you "have" to issue a subpoena for trial witnesses.

Sorry, I guess I'm confused. You said that you often don't subpeona witnesses because you don't want to tip off opposing council as to who will be testifying. How do you provide a witness list and not tip them off?

 

[absolut_alexis]

Wait - I typed it wrong. It is 914.

Title XLVII CRIMINAL PROCEDURE AND CORRECTIONS

Chapter 914 WITNESSES; CRIMINAL PROCEEDINGS


914.001 Witnesses; subpoenas to run throughout the state; all names to be included in one subpoena.--
(1) Subpoenas for witnesses in criminal cases shall run throughout the state and be directed to all of the sheriffs of the state.
(2) When possible, the names of all witnesses summoned for, or at the cost of, the state in a criminal case shall be included in one subpoena, and the prosecuting officer shall, when possible, include the names of all such witnesses in one praecipe for such subpoena. History.--s. 2, ch. 871, 1859; ss. 2, 4, 6, ch. 3702, 1887; RS 2859, 2860; GS 3915, 3916; RGS 6013, 6014; CGL 8307, 8308; s. 94, ch. 70-339.

:blowkiss: thanks again!

 

[Chezhire]

SNIPPED: " ... b/c sometimes, when my witness list is rather lengthy, which it usually is b/c I list all potential witnesses and, therefore, a list of 30-40 for starters is not unusual, and I don't want to tip off opposing counsel as to exactly who will be appearing to testify . . ."

Sorry, I guess I'm confused. You said that you often don't subpeona witnesses because you don't want to tip off opposing council as to who will be testifying. How do you provide a witness list and not tip them off?

Sorry - I probably didn't explain it that well in the post I snipped above. The idea sometimes is that you have such a lengthy witness list (we always list any and everyone who might possibly have anything to add, b/c you don't want to be precluded from calling someone if you learn about something or look at something differently at the 13th hour) the opposing counsel cannot possibly know who for sure will be called. I've never called every single potential witness I included on my witness list. If you are forced to issue a subpoena, then they know b/c you typically have to send out courtesy copies to all opposing counsel.

I was responding in a general sense to your general question a few pages back, post #70, in response to a comment by Lele1953, here:

http://www.websleuths.com/forums/showthread.php?t=77135&page=3

 

[Chezhire]

Wait - I typed it wrong. It is 914.

Title XLVII CRIMINAL PROCEDURE AND CORRECTIONS

Chapter 914 WITNESSES; CRIMINAL PROCEEDINGS


914.001 Witnesses; subpoenas to run throughout the state; all names to be included in one subpoena.--
(1) Subpoenas for witnesses in criminal cases shall run throughout the state and be directed to all of the sheriffs of the state.
(2) When possible, the names of all witnesses summoned for, or at the cost of, the state in a criminal case shall be included in one subpoena, and the prosecuting officer shall, when possible, include the names of all such witnesses in one praecipe for such subpoena. History.--s. 2, ch. 871, 1859; ss. 2, 4, 6, ch. 3702, 1887; RS 2859, 2860; GS 3915, 3916; RGS 6013, 6014; CGL 8307, 8308; s. 94, ch. 70-339.

:waitasec: The snipped above does not say that all witnesses who will be testifying must be subpoenaed for trial. It simply discusses the mandatory method of having them served with subpoenas if you are serving same.
Do you have a snippet that says whether or not all witnesses who will testify must be subpoenaed?

 

[Pattymarie]

I think this is an excellent point. I watched the original bond hearing start to finish last night, and I wanted to smack the poo out of CA. She was allowed to ramble on and on, to talk about her sleep deprivation, how "everyone knew she was only drinking water and not eating", and on several occasions when JB made an objection, she seemed to act like she was a member of the defense team, actually looking at the judge and saying "Yeah". (My perception) It was weird. She was all over the place and it seemed no one was keeping her on a leash.

Isn't it nice and quiet now that they have gone into "seclusion?" I thought that CA's words and behavior throughout this whole ordeal were the most riveting part (well, second to her daughter's outrageous lies). I could not believe what she was permitted to get away with. I could not believe that no one could restrain her.

 

[BonKai]

Isn't it nice and quiet now that they have gone into "seclusion?" I thought that CA's words and behavior throughout this whole ordeal were the most riveting part (well, second to her daughter's outrageous lies). I could not believe what she was permitted to get away with. I could not believe that no one could restrain her.

Personally, I think it may help the prosecution that CA wasn't reigned in. Give her enough rope to hang herself, so to speak. NeJame figured this out and left.

 

[Chezhire]

Clearly you cannot pay someone not to testify. You describe an agreement that they will show without a subpoena, and if they don't they will pay damages. Also, I'm sure this practice would be fine for civil matters, not sure about criminal.

I believe the State is required by statute or procedure to subpoena all witnesses, I don't know if the defense would be so bound, although if they failed to do so I'd hate to be their E&O carrier.

I appreciate your thoughts and questions, but since I'm not interested in educating Baez or any other of Casey's legal team who reads here beyond the comments I've already made, I'll leave it at that.

:waitasec: I asked another poster who'd found the FL statute re: mandatory manner of issuing a subpoena IF you're issuing one, whether or not there was anything in there that requires a subpoena be issued in order for the party to be able to present the witness' testimony. I'm sure FL has something on this one way or the other somewhere. I just don't have time at the moment to go research it on Westlaw. If I have time later, and no one else posts an answer, I'll go looking for it.