Material Witness Orders/Ensuring A Witness to Testify in a Criminal Matter

by | Feb 28, 2020 | Blog Posts, NC Criminal Defense | 0 comments

Material witness orders – In North Carolina (like every other jurisdiction) the primary way to enter evidence in a criminal trial is through witness testimony. Problems can occur, however, when people do not want to testify or otherwise be involved in a court proceeding. This happens often, and sometimes the case simply gets dismissed because of a lack of witnesses, but that is not always the case.

Subpoenas are the legal mechanism that compels witnesses to testify in court proceedings, but sometimes they are not enough. The reason for that is, some people will ignore subpoenas or otherwise fail to comply. In this blog, we will discuss what else can be done. Specifically, we will discuss material witness orders. Like all our blogs, this is intended for general informational purposes only and not as a substitute for the advice and counsel of a criminal defense attorney.

*Please note that this entire discussion is in the context of North Carolina criminal trials.

Material witness orders

The law regarding material witness orders in North Carolina is found under North Carolina General Statute 15A-803. This is a mechanism that goes a step further than a typical subpoena to ensure witness testimony at trial. If there are reasonable grounds to show that a witness will not be responsive to a subpoena or has indicated that he will not comply with a subpoena, this can be requested by the attorneys on either side.

Court order ensuring attendance in a criminal trial

The court may issue an order to hold a potential witness for a certain period to ensure that they are available to testify at a criminal trial. This would include the witnesses being incarcerated for that purpose and held until he is no longer needed for the trial. The initial period of incarceration cannot exceed 20 days; however, the order can be renewed for up to five days at a time, more than once.

Instead of incarceration, the judge may order the witness to be available, or face contempt charges for failure to do so.

Procedure for obtaining material witness order

Attorneys in a criminal proceeding may make a motion for a material witness order by affidavit showing cause for the issuance. This requires a hearing to be scheduled and the witness must get an appropriate amount of notice to be heard on the matter. Typically, this process begins when someone states that they will not comply with a subpoena or there is some other indication that they will refuse to comply with the subpoena.

Because the witness that is subject to this order faces incarceration, they will be entitled to a court appointed attorney the same way they would be for a criminal matter.

Criminal defense strategies can be complicated and overwhelming. If you have been charged with a crime, it would be best to hire an attorney.


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