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Questions regarding a criminal case....

San Antonio, TX |

Due to a dispute, there is a now a criminal case in process. Although the victim initiated the dispute, he has filed affidavits for non-prosecution and moved away in hopes of moving on. 1. Does he have to testify if he has no subpoena? 2. Are police or DA affidavits considered the same as being “sworn” in? 3. He now has a PO Box, wiIll the police go to his job? 4. Does he need an attorney?

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Attorney answers 3


Generally speaking in a criminal case the defendant has a right to confront their accuser in court. The DA can't just submit an affidavit and have the jury read it. The defendant has a right to have his or her attorney cross examine the accuser.

Most states require a subpoena to force someone to show up at court to testify. That doesn't mean the witness has to testify though, there are situations where the witness may want to take the 5th and not answer questions. A witness in that situation would most definitely want to consult their own attorney.

Good Luck!

Leighton D'Antoni
Attorney at Law

Law Offices of Leighton D'Antoni
Founders Square
900 Jackson St. Suite 750
Dallas, TX 75202
(214) 960-9360 (phone)
(214) 666-3901 (fax)

*licensed to practice law in the States of Texas and California


You need to hire an experienced criminal law attorney in San Antonio.

The prosecution's job is to get a conviction. If there is any way to get a conviction or attempt to bully you into taking a plea, the prosecutor will do it. In order to go to verdict, the State needs a statement of the complaining witness (there are some types of assault cases where the investigating officer can testify as to what the complaining witness said) laying out the elements of the crime. That statement is required to be made in court because you have a constitutional right to question and confront your accuser. If the witness is not present and the State has to rely on a report or writing then the statment becomes hearsay and is generally not admissible (there are exceptions to this rule).

The State knows this and will attempt to do everything in their power to get the complaining witness to appear and testify (including subpoena and physically bringing them to court) if there is enough interest in the case. The affidavit of non-prosecution is a plus but you need to have an attorney to present it and convince the DA to drop the case. If the State refuses to drop the case, the attorney can then use the affidavit to impeach (or show that he is not testifying truthfully) the witness. Again, if the DA is interested enough in the case, he will request the judge to issue a warrant to have the police find the complaining witness where ever he is and bring him to court.

The same rules go for witnesses for the State. If they are going to use the testimony, the witnesses must be present and must be able to be cross examined.

Good Luck!


1. Without the subpeona, he is under no legal obligation to show up to court to testify.
2. Not sure I understand exactly what the question is asking.
3. If the police want to serve him in person with a subpeona, they can go to his house, job, or anywhere else they can find him.
4. He would only need an attorney if he has questions about what he is required to do with regard to the subpeona, testifying, and so forth.


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