The Process of Getting Witnesses to Testify in Court
Most of the time, apartment communities have all the witnesses they need because everyone who needs to testify in the case works for them the clerk that posts rent receipts of the maintenance supervisor who repairs damage caused by tenants, for example. However, sometimes apartments need a witness who doesn't work for them the police officer who got called to a fight in the middle of the night or the neighbor who was the only witness to a lease violation. How do you handle this?
Will the witness volunteer?
We usually recommend handling these situations in several steps. First, talk to the person you need as a witness and find out if they are willing to come voluntarily. If they are, this is better for several reasons:
In many cases on repeated lease violations, the tenant's neighbors are as frustrated with the tenants as you are; and they may be happy to go to court to help get the tenant out.
- you don't have to pay the person a witness fee and
- you often get better cooperation from those witnesses.
However, when asking a tenant to testify, you should be careful about the promises you make. Remember that if you lose this case, the problem tenant will remain on the property (and even if you win, the tenant will probably be given several days to move); so don't promise the witness that the tenant will be gone if they testify or that you will keep them safe. Make sure they understand the risks of testifying and are willing to accept them.
Can you use a document instead?
If the witness you need is not willing to testify voluntarily, what do you do next? First, consider whether there are any other alternatives. As we explained in our column last month, you don't always need a live witness, if you have a document that fits one of the "hearsay exceptions". In a previous article, we explained the exception for business records, which allows you to introduce records that you have kept as part of the business of running your apartment community.
Also, there are a number of other exceptions to the hearsay rule, and some to these may be helpful in certain instances. One of the exceptions that we use most frequently in restitutions is the public records exception. This exception allows you to introduce records and reports from public agencies, such as the police.
Using police reports is often a good alternative to a live witness. In our experience, the police are usually extremely reluctant to testify. They usually require a subpoena and a witness fee payment. Also, we have sometimes found that the testimony given by police officers does not help your case nearly as much as you had hoped they often seem reluctant to say much when they are under oath. In contrast with a police report, you will know in advance exactly what it says and whether it will support your case or not. And, the judges generally seem to accept what the report says as good evidence once you've gotten it admitted.
In order to use this exception for a police report (or similar records), you will have to do the following:
- Get a certified copy of the report from the police department. A certified copy has a special stamp on it certifying that it is a public record. You have to specifically request that the copy be certified and pay for the copies. When you pick up the copy, check to make sure that it has all the pages and that the certification stamp is on it you don't want to find out in the middle of the hearing that the police department made a mistake.
- Take the copy with you to court and tell the judge that you want it admitted as evidence under the Public Records exception to the hearsay rule. Be aware that many judges, particularly judges who have worked mainly on criminal cases, may initially be reluctant to admit a police report in this manner because they cannot do so in a criminal case. However, ask them to check the language of the rule at SCRA 11-803(H), [New Mexico] and point out that the rule states that this type of evidence is admissible in a civil case. If the judge still refuses to admit the report, ask for a postpone- ment of the hearing so that you can all the police officer as a live witness.
What if you have to subpoena the witness?
If the witness is not willing to testify voluntarily and there is no document that will substitute, you should consider serving a subpoena on the witness to force them to testify. You can serve a subpoena on anyone you can find within the jurisdiction of the court. The subpoena requires them to show up and testify at the hearing on your case. If they are properly served and don't show up, they can be held in contempt of court.
Before deciding to subpoena a witness, you should first consider why the witness is reluctant to testify. If the witness simply needs a subpoena in order to get off work to wants the witness fee to pay for the time they spend in court, it is probably worth it to subpoena them. However, if the witness is deathly afraid of testifying or is "good buddies" with the tenant and doesn't want to testify against them, you should probably reconsider. In our experience, reluctant witnesses often lose their memories or tell a different story on the witness stand then they did in private. Unless you have something that will pin them down and make them tell the truth, you are taking a chance with your case by calling them. At this point, it is probably a good idea to talk with an attorney and see if they can point our some alternative ways to introduce the evidence you need.
Once you've decided to subpoena a witness, you need to do the following to set it up properly:
- Get an issued subpoena from the court. These are blank forms that are available from the court clerk. If you use subpoenas often, you can simply get a handful from the clerk and keep them at your office to be used as needed.
- Fill in the subpoena completely. Fill in the caption of your case at the top, exactly as it reads on the petition. Include the case number, too. Be particularly careful to get the name and address of the witness and the time and location of the hearing correct.
- Make two copies of the subpoena. Attach on of the copies and a check for the witness fee to the original [in Metro Court, (N.M.)the witness fee is currently $80.00, but it's always a good idea to check with the court clerk in case the amount changes], and give it to a process server. Keep the other copy for your records.
- Have the process server serve the subpoena on the witness. Unlike some of the notices that you give tenants, this must be served by a process server no one else will do. (You can use a private process server or the sheriff's office. We generally use a private process server because they will serve the subpoena more quickly and are easier to work with.) Because you are often working under a tight deadline on restitution cases, make sure that the process server is aware of the hearing date and will get the subpoena served in time for the witness to get the hearing. In many cases, cooperative witnesses will agree to meet the process server at a specified time and place to save wear and tear on everyone. If the witness won't cooperate in this manner, give the process server as much information as possible about the witness' likely whereabouts.
- When the process server serves the subpoena, he or she will detach the original and leave the copy and the check with the witness. The process server will then fill out the return of service on the back of the subpoena and return it to you.
- You must file the return of service with the court clerk before the hearing. If you do this, and the witness doesn't show up, the judge will usually postpone the hearing while you track down the witness. If you don't have the return of service to prove that the witness was served, the judge will usually require you to go forward without the witness.
As you can see, this is quite a process. However, having the right witness can make the difference between winning or losing a case. So, you want to be careful to follow each step exactly. And, when you get to court, you will want to be extremely organized so that you can take the best advantage of the witnesses and documents you have. Make a checklist of the things you need to prove and follow it carefully so that nothing gets left out.
As always, if you feel you are getting in over your head, contact an attorney for help. There are times when it makes sense to handle your own restitutions and times when it makes more sense not to. If you know that a tenant is likely to be represented by an attorney, if you are calling a hostile person as a witness, or if you have a confusing number of documents and witnesses, and attorney can make a real difference in your case.
By William J. Darling
Note: this article was written in accordance with New Mexico law. As always, check with your own lawyer in your own area with respect to your own case.
Reprinted with permission from William J Darling and Margaret Armijo, with the law firm of William J Darling & Associates, P.A. 2716 San Pedro NE, Suite A, Albuquerque, NM, (505)888-4567
or Email to:William J Darling
This article was featured in New Mexico Apartment News - the official publication of the
Apartment Association of New Mexico.
Copyright 1996-1997 ComPortOne. All rights reserved.
Comments or suggestions? Email ComPortOne