TO: Judge James B. Scott, Criminal Court
        Judge Don Layton, General Sessions, Division I
        Judge Ron Murch, General Sessions, Division II

FROM: James N. Ramsey, District Attorney General

Re: Failure To Appear Cases

Date: August 7, 2002

Our office regards the offense of failure to appear in court (FTA) in criminal cases as a serious matter.

Surprisingly, we have encountered reluctance to cooperate from judges and others who work in the judicial system - notably because it involves appearing to testify as a fact-witness. This generally comes in the form of a response to a State subpoena that says in effect, "I'm not coming - get someone else to testify", etc.

Judges do testify as fact-witnesses. Please note one recent reported case, State vs. Dean, 76 SW 3d 352 (2001) at p 358, where the General Sessions Judge testified at jury trial as a defense witness to what occurred in his court during preliminary hearing. His testimony was not even necessary to establish one element of the offense - he was just used for impeachment. Obviously there were other witnesses in the courtroom that could have testified to the same fact; but litigators get to choose whom to use as a witness - whomever we deem in our experience to be the best witness for prosecution purposes.

If we encounter reluctant or hostile witnesses in any situation we will decide on a case-by-case basis how to proceed. This office does not intend to go to hearings, including and especially jury trials, without issuing subpoenas for all available credible eyewitnesses to a criminal offense-- including judges, court reporters, bailiffs, court clerks, etc.

If witnesses make themselves unavailable by legal means (quashing subpoenas) or by extra-legal means (disregarding subpoenas), we will deal with the individual situation as is practical and just.

James N. Ramsey
District Attorney General