Help, need legal advice quickly...
Moms View Message Board: General Discussion: Archive August 2007:
Help, need legal advice quickly...
My dad is in a difficult situation. He has been subpoenaed to testify AGAINST his friend on Tuesday. His friend is being accused of setting his house on fire, but they never had any proof of this. The fire marshal and investigators have always just said that the fire was suspicious but never determined what caused the fire. The reason that my dad was subpoenaed is because he was at his friends house the day of the fire before he went to work.
My dad is in poor physical and mental health (as in I truly believe that he’s beginning to lose his mind) as it is, so he doesn’t need this added stress. He is all torn up about this and I’m really worried about him. His friend called earlier today carrying on and said that he better not testify against him. Now my dad says he’s not even going to show up in court. He’s even talking about leaving town over this. My mom thinks it’s all a joke and is playing along with him.
My dad nor anyone else in our family believe that this man set his house on fire and we will never believe it. My parents let this man live with them for a couple of weeks after his house fire and helped him to get back on his feet.
What can my dad do about this? What will happen if he doesn’t go to court or if he leaves town? I would guess he would go to jail, but then what?
I have no advice for you but wanted to offer you big ((((HUGS))))))
If he's subpeonaed, he has or go, or could be held in contempt of court. He should go, tell the truth, and hope for the best.
First, a subpoena is a court order. Crystal is right, your dad could be held in contempt of court. My guess is that the subpoena was issued by the prosecutor (or maybe the insurance company, if this is a suit by the insurance company to keep from paying out on the insurance), and the judge is unlikely to go against the prosecutor (if that's who is involved) without a very good reason. Second, your dad should talk to a lawyer IMMEDIATELY. You should go with him to the lawyer to tell him about your dad's condition. The lawyer may tell your dad to go to the doctor and get a certificate from the doctor as to his condition. At the very least, the lawyer should be able to stall things. Yes, your dad (or you) will have to pay the lawyer. But it may be worth it to not give your dad the stress. If you and your dad can't afford $500-$1,000, which is what it may come to, then call the Bar Association for the county your dad lives in and ask for a referral for free legal assistance - there are income qualifications, and I don't know if the local free legal service would get involved, as they have some restrictions on the kinds of legal services they are allowed to handle, but it is worth a try.
Finally, if your dad decides he has no choice but to appear and testify or risk being put in jail for contempt, he should remember that he should only answer the exact question asked, and answer it in as few words as possible. If the question is a yes/no question, he should simply say yes or no without any explanation. If he is asked, for example, did you see any ???, that's yes/no. If he is asked "what did you see", he should keep his answer as simple and as short as possible. If he is asked about his friend's financial condition, he can only answer what he actually knows. If he is asked what his friend said about his financial condition, he can only answer what his friend said and agan, shouldn't go into any details or expand on his answer.
And he should do the same whether it is the prosecutor or his friend's lawyer asking the questions. If he opens up in answering his friend's lawyer's questions, then the prosecutor can come back on cross-examination and ask more questions.
As for your dad's friend calling him and telling him he'd better not testify, that doesn't sound very friendly to me. The friend knows or should know your dad is under subpoena and, frankly, the friend shouldn't be having any contact with your dad at all and if the judge finds out about it the judge will be very unhappy. The friend should know that if your dad doesn't obey the subpoena that your dad will be in legal trouble - again, that doesn't sound very friendly to me. Would I be correct in thinking that part of what has your dad upset is what sounds to me like a threat from a man your dad thought was a friend?
I strongly recommend that your dad at least talk to a lawyer. Anything he says to the lawyer is completely confidential and neither your dad nor the lawyer can be compelled to answer any questions about it. (And, by the way, if you are in the room when your dad and the lawyer talk, that may remove the lawyer/client confidentiality because you are what is called a "third party", so you should ask the lawyer if you should be in the room when he talks to your dad about legal matters. When my son had a legal problem my boss was his lawyer, and my boss told me it was very important that I not talk to my son about the legal trouble or read the file, because I might be put in a position of being subpoenaed to testify against my son.)
Please understand, I AM NOT A LAWYER. What I have said above is based on what I have read and what lawyers have told me. I am not in any way qualified to give legal advice, which is why I so strongly suggest your dad talk to a lawyer.
Yes he was subpoena by the prosecution. His friend wants him to go talk to a lawyer, but my dad won't go because he doesn't have the money and won't try to get free legal advice. My dad is caught in the middle of all of this all because he was at this guy's house for a few minutes the day of the fire. My dad knows a lot though because he has went with his friend to his lawyer several times in the past and he has read all of the paper work that the lawyer gave his friend. The way things are worded in the paperwork doesn't sound very good on his friends account. But again we don't believe he did it. Also this fire happened back in 2003 but he's just now being sent to court about it.
My dad does have a lot of health problems, but he hasn't been to the doctor in the past couple of years, so I doubt he'd be able to get out of this on a medical account.
I'm going to tell my dad that he isn't supposed to be talking to his "friend" since his was subpoenaed, but he probably won't listen. I know his friend won't listen. I just hope his friend doesn't show up at my dad's house.
I don't know that your dad isn't allowed to talk to his friend, unless the court tells him not to, and it doesn't sound like that has happened. I do think it is very improper, but probably not illegal, for the friend to contact your dad. I also very much question why the friend "called earlier today carrying on and said that he better not testify against him." That sounds very much like a threat to me.
I wonder if the friend's lawyer knows the friend showed your dad all the paperwork.
I think your dad needs to show up Tuesday morning, and be very careful to answer only the questions that are asked and answer only out of his own knowledge, not from anything his friend said to him (unless he is asked about what his friend said) and not out of any of the paperwork he read. This sounds very stressful and I'm really sorry your dad is caught in the middle of it. I'm a bit surprised the prosector hasn't already talked to your dad (or has he?). But ignoring the subpoena could potentially lead to big trouble for your dad and then he *would* need a lawyer. What a mess.
I want to add - of course, your dad is going to answer all the questions truthfully. I wouldn't expect anything else. But if he is asked a "tricky" question or a question he doesn't understand, it is perfectly alright for him to say "I don't understand the question", and the lawyer will re-phrase the question until it is clear to your father. Generally neither judges nor juries like "trick" questions, and generally judges see nothing wrong with a witness saying truthfully that he doesn't understand the question.
The trial was postponed indefinitely.
Depends on the laws in your state. In Pennsylvania it is illegal to record a telephone conversation (without a warrant or court order) unless both parties know it is being recorded and agree. In NJ only one party has to agree. Still, better not to.
Quite honestly, I think your dad should tell the District Attorney about these threats. I don't know if your dad will consider doing that, because he may still consider the guy a friend. But, threatening witnesses is a crime in itself, and it could get the guy's bail revoked. I am guessing he had an arraignment and was bound over for trial, and was either released on bail or on his own recognizance (a "no money" bail, usually with promises of good behavior). Either way, if the prosecutor tells the judge that this guy has been contacting and threatening a witness, and if your dad testifies, most likely the guy would wind up in jail at least until his trial. Alternatively, the prosecutor might want to get a warrant for a wire-tap and put a tap on your dad's phone so if the guy calls again there is hard evidence.
Given that your father has been convinced so far that this guy had nothing to do with the fire, I have to wonder what it is he is afraid of your dad saying when your dad testifies.
Your dad should think seriously about this situation. He is not the only one at risk - your mother is at risk also if this guy goes off the deep end.
By the way, does your dad have a cell phone. If he has a cell phone (maybe one of those pre-paid phones) he could call 911 no matter where he was in the house if he thought he had a good reason. You might talk to your dad about that.
Ditto Ginny!!!!!!!
Thanks for the advice.
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