Not our fault! When the prosecution can’t use a witness’s “unavailability” to delay trial

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.

witness’s “unavailability”Most of my readers understand that the burden of proof is always on the prosecution. That burden is guilt beyond a reasonable doubt and it’s a much higher evidentiary standard than the civil standard which is by the preponderance of the evidence.  To meet its burden, the prosecution must present witnesses.  These witnesses, however, don’t always come to court and frequently the prosecution (Commonwealth) attempts to use their unavailability as an excuse to extend the speedy trial clock.

Rule 600 requires that district attorney bring a criminal defendant to trial within 365 days of the filing of the criminal complaint. This requirement, however, does allow for time extensions. These time extensions include such things as bad weather, court closing, and other things beyond “the Commonwealth’s control.”  While the rules of criminal procedure allow for  time extension beyond the 365 day rule, the district attorney must still show, by a preponderance of the evidence, that the Commonwealth has exercised due diligence with regards to the witness’s unavailability.  The test to determine whether the prosecution has exercised due diligence is one of reasonableness under the circumstances.

If the prosecution needs a specific witness for trial or a preliminary hearing, they just can’t simply state that the witness failed to appear and use it as an excuse to extend the speedy trial clock. In this situation, your criminal defense lawyer must challenge the reason for the unavailability issue. If for example, the prosecution failed to subpoena the witness, it shouldn’t be allowed to extend the time deadline.  If the prosecution claims that the witness is on vacation, your defense should find out when the prosecution became aware of the vacation and what they did to notify the court and the defense about it.  Remember that a criminal court in Pennsylvania will only permit an assistant district attorney to extend the time to prosecute an accused beyond 365 days if it can show that the delay was beyond his or her control.  With regards to delays, your defense counsel shouldn’t continue cases without a specific reason.  Defense delays don’t count against the speedy trial clock and the prosecution will always point out defense delays if a time deadline becomes an issue.

The unavailability of a police officer is a frequent excuse of the Commonwealth. Don’t let this very broad category give the prosecution an opening to illegally extend the time to prosecute your case.  Challenge the unavailability issue; find out why the office is out of the district attorney’s control.  Was a subpoena prepared? If the officer is in training, when did the prosecution become aware of that training?  If the officer is on vacation, when did the prosecutor learn of the police officer’s vacation?  If the officer is injured on duty (IOD), find out the nature of the injury that is preventing the officer from coming to court.

Your defense’s purpose is to hold the Commonwealth accountable for unreasonable delays. This is a critical point for your defense lawyer to hammer.  Even if the prosecution withdraws its case and then re-file the criminal charges, it is still stuck with the original criminal complaint date in most cases.  The reason for the delays is therefore an important part of your criminal defense.  For more criminal defense strategies, I encourage you to visit my free download section.

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