2012 – Colorado Law Changed For Failure To Obey A Subpoena – Refusal To Testify In Colorado Trial

I am often asked as a Colorado Domestic Violence Lawyer – ” what if I refuse to come to trial and testify?” Ethically – ALL lawyers know they MUST urge their clients and ALL witnesses to obey court orders and testify – even when they do not want to ..this is because the criminal justice system would collapse if witnesses could pick and choose when they will obey a Court Order of any kind.

Trials are intended to vindicate the innocent and convict the guilty.  So there are punishments allowed to be meted out by a judge of a witness or victim refuses to obey a lawfully served subpoena.

This new change in the law – governs the conduct and power of a trial judge where a witness refuses to appear and – or otherwise obey a subpoena in Colorado.  This law makes

Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena

The Old Law – 17(H)

17 (h) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

The New Law – 17(H)

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena.

The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued hop over to this site. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes.

Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury;

or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Here is a LINK to the New Law: 

The comments to the rule – that help explain the decision to create the new rule are as follows:

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

1.A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and

2.An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

1.That it be limited to trials, and not apply to hearings;

2.That the arrested witness must be brought directly and immediately to court;

3.That a bond be immediately set; and

4.That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

H. Michael’s Take:

This represents a sea change in what most lawyers thought about bench warrants issued for witnesses who fail to appear.

Here is the committee’s thinking on the reasons for the law:

..there is no Colorado rule or statute giving a trial judge any express authority to issue bench warrants when subpoenaed witnesses fail to appear for criminal trials.

“After  wide-ranging discussions over many months, a substantial majority of the Committee concluded that the uncertainties surrounding this inherent power should be formally addressed by modifications to Crim. P. 17(h), and that those modifications should expressly recognize the trial court’s power to issue bench warrants for the arrest of non-appearing criminal witnesses, as a practical alternative to indirect contempt  proceedings  under C.R.C.P. 107.”

The one dissenting member of the committee had this to say about the process:

“… the legislature has not authorized  a court to proceed with a bench warrant. [And] …there is a good reason for the indirect contempt process:  it allows for the witness to have some modicum  of process without being grabbed by law enforcement.  Perhaps service of process did not occur as relayed by the serving party, or the witness had a valid excuse (such as a belief that the witness  was placed “on  call”.)  Rather than expanding the opportunity for a peace officer to take someone into custody, the process of indirect contempt allows for a less aggressive avenue to address the problem of a missing witness, one that is much less threatening to civil liberties. For these reasons,  I am strongly against adopting a rule-based framework for issuance of a bench warrant when a criminal trial witness is alleged to have failed to appear on a subpoena.”

However – this lawyer believes that the expiration of the bench warrant for failure to appear at trial – – if the trial proceeds to verdict – or if the trial is canceled or terminated for some reason – makes complete sense and is a good fix to the present state of the law.

Indirect Contempt of Court in Colorado

Contempt of court is governed by Colorado Rules of Civil Procedure Rule 107. Rule 107 indicates that there are two types of contempt, direct and indirect. Direct contempt generally relate to actions taken in the court and contempt brought by the judge. Our attorneys rarely deal with direct contempt, as they are just not that common. Indirect contempt are contempt generally brought by one party against the other for violating the court’s order, which can be “indirectly” offensive to the court.

Contempt are further categorized as being either “remedial” or “punitive.” With punitive contempt, pure punishment is sought, whether fines or jail time (which can be up to 180 days). With remedial contempt, individuals seek an order remedying the violation of court orders. In a remedial contempt situation, the person bringing the action can also seek attorney fees. In the punitive situation, they cannot. However, C.R.C.P. Rule 107 allows a person to seek both remedial and punitive sanctions in the same action.