Don’t threaten witnesses with jail time if they don’t talk to prosecutors before trial

Can we agree judges and prosecutors should not throw witnesses into jail for failing to appear at pretrial “prep sessions?”

As Andy Grimm reported in Friday’s Chicago Sun-Times, a federal lawsuit alleges witnesses have been routinely jailed for not responding to prep sessions, which give prosecutors a chance to talk about testimony with a witness before a trial starts.

Assistant Cook County Public Defender Julie Koehler, who has worked in the courts for more than 20 years, said prosecutors have issued prep subpoenas in most of the murder cases she has handled. The lawsuit cites a 2012 case in which a state’s attorney investigator said he routinely served prep subpoenas during his 10-year career with the office.

What’s going on here?

Prosecutors like to go over testimony with a witness before trial so there are no surprises that could sink a case. It’s OK to request that witnesses sit down to talk ahead of time. But a threat of jail time should not hover in the background.

During a trial, it is routine to issue subpoenas to witnesses to appear in court when it is time for sworn testimony. But issuing subpoenas for prep sessions ahead of trial shouldn’t happen. Judges have to sign off on the subpoenas, but if they do, that is just the people in robes doing prosecutors’ work for them.

Legally, witnesses don’t have to talk to either prosecutors or defense attorneys before trial when it is not yet the time to give sworn testimony, criminal justice experts tell us.

But in one case, a 20-year-old mother of a toddler was jailed for more than a month after she didn’t show up for a prep session, according to the lawsuit. In another case, a man who showed up in response to periodic prep subpoenas for five years as pretrial activity dragged on was arrested outside his college dorm room in Arkansas and then flown back to Chicago in handcuffs and ankle shackles because he didn’t show up three weeks before the trial started.

We don’t know how widespread this practice is in Cook County. Some veterans of the system said they have never seen it in the courtrooms where they have worked.

But it shouldn’t happen at all. Not only does the practice skirt the law, it also creates barriers between prosecutors and the people they are relying on to make the system work.

No lawyer likes surprises when an actual trial is underway. Going over testimony in advance can help a prosecutor shape a case properly so it makes a strong impression on a judge or jury.

But using the threat of jail time — or actually imposing it — to compel people to chat with prosecutors ahead of time, or to keep witnesses in jail so they are available for a trial, is simply out of bounds.

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