When criminal defense attorneys handle bond hearings, they may not call witnesses on their own, and the state may not call witnesses for the criminal defense lawyer to cross-examine. At bond hearings, the issue to be decided is the bond amount the defendant needs to post in order to be released from jail while his/her case is pending. The judge is supposed to consider whether the defendant is a risk of fleeing the jurisdiction and/or missing court, is a danger to the community, is a risk to influence witnesses and other factors. At many bond hearings, the criminal defense lawyer and the prosecutor will state their respective positions to the judge and ask for the bond amounts they believe are appropriate. These bond hearings are often done without any witnesses. However, each side can call witnesses to testify at a bond hearing. They can be witnesses who know nothing about the case but know the defendant, or they can be witnesses who do not know the defendant but are familiar with the facts of the case.
When witnesses do testify, the lawyers typically do not consider the fact that the transcript of their testimony may be read at the actual trial. Some criminal defense lawyers may just focus on the bond issues which are not necessarily related to the facts of the case itself and the guilt or innocence of the defendant. Other criminal defense attorneys may use a bond hearing as an opportunity to cross-examine a witness on the other side with the idea that he/she can lock that witness in to a statement favorable to his/her client’s side to be used as impeachment in case that witness tries to testify differently later at trial.
However, it is possible, when a witness is testifying about key aspects of the case at a bond hearing, that the bond hearing testimony is the only testimony that will ever come from that witness and it will be read back to the jury at the trial without that witness showing up. In a recent murder case south of Jacksonville, Florida, the state had a witness to the murder testify at the bond hearing to key facts about the murder which incriminated the defendant. When the trial was scheduled many months later, that witness was gone. He had been threatened after testifying at the bond hearing and told the state he was too scared to testify at the trial. The state attempted to locate him, but they were unsuccessful. Since they could not locate the defendant and bring him to trial, the state moved the court to read the transcript of his testimony from the bond hearing.
The criminal defense lawyer objected to reading this testimony from the old bond hearing. He noted that a defendant has a Sixth Amendment right to cross examine any witness who testifies against the defendant. If the state merely reads from a transcript and the witness is not present, the criminal defense lawyer has no way to cross-examine the witness to assess his credibility and question his testimony. In essence, the criminal defense lawyer objected because the transcript of the prior testimony was clearly hearsay.
However, there is an exception to the hearsay rule where the witness is unavailable, the state makes a good faith effort to locate him and the other side had a prior opportunity to cross-examine the witness. In this case, the court found that the hearsay exception applied and allowed the state to read the transcript without the witness present. The state was able to show they tried to locate the witness but he could not be found. The court also found that the prior bond hearing was a sufficient opportunity for the criminal defense lawyer to cross-examine the witness then. Of course a bond hearing, which is usually conducted very early in the case before many of the facts and issues are known, is not a very good opportunity to cross-examine a witness. And, as indicated, it is not a proceeding where it is customary for a criminal defense attorney to really get into it with a witness. However, if certain circumstances arise, as in this case, that bond hearing testimony could be critical to the outcome of the trial many months or years later, and an abbreviated cross-examination could prove costly.