The Missing Witness: Why We Have to “Arrest” Them Before We Can Strike Them

By: John Guidry

Lawsuits are a funny thing. Everyone seems eager to file them, but everyone complains when the accused seeks to investigate the claims.

This is especially true in criminal defense when it comes to depositions. In felony cases, defendants may face a 25-year minimum mandatory prison sentence for trafficking based on the testimony of a witness who won’t even spend 15 minutes answering questions.

When a witness fails to appear at depositions—and your client is facing a mandatory prison sentence—what can be done to right this wrong?

Is the State’s key witness refusing to answer our questions?

We can force them to appear. Call John today at (407) 423-1117.

The Knee-Jerk Reaction: “Strike the Witness!”

Some criminal defense attorneys immediately file a Motion to Strike, requesting that the judge remove the witness from the State’s list so they cannot testify at trial.

Seems fair, right? If the witness doesn’t appear for depositions, the defense has no idea what they are going to say at trial. It makes sense that a judge would refuse to allow them to testify.

The Reality: Unfortunately, the criminal rules are not so simple. The law requires the defense attorney to ask for other sanctions first.

• The Rule: The State is not obligated to bring their witnesses to you. As the court held in State v. Jackson, 436 So. 2d 985 (Fla. 3d DCA 1983), it is not the State’s job to produce a witness subpoenaed by the defense.
• The Consequence: You cannot punish the State (by dismissing the case or striking the witness) just because the witness is being difficult. You have to punish the witness.

The Process: From “Show Cause” to “Bodily Attachment”

The law basically requires a witness to be “punished” before they can be banned from testifying. Here is the step-by-step nightmare we have to navigate:

Step 1: Motion for Rule to Show Cause When the witness misses the deposition, we file a motion asking the Court to drag the witness in for a hearing. The witness must stand before the judge and explain why they ignored the subpoena.

Step 2: The Sanctions (Contempt or Arrest) If the witness fails to appear at that hearing, the judge can grant sanctions.

• Contempt of Court: Fines or jail time.
• Writ of Bodily Attachment: This is essentially a civil arrest warrant. It permits law enforcement to arrest the witness and hold them in jail until they give their deposition.

Step 3: Striking the Witness Only after we have tried to arrest the witness and failed can we ask the judge to strike them from the trial.

The Absurdity: Jail Before Exclusion

This seems extreme, right? In my 20 years of criminal defense, I have rarely had to have a witness arrested. But what strikes me as odd is that the law requires us to try to arrest them first.

In State v. Gonzalez, 695 So. 2d 1290 (Fla. 4th DCA 1997), the appeals court overturned the striking of a witness because the defense skipped the arrest step.

“The exclusion of a witness is justified only after some lesser sanction, such as contempt or writ of bodily attachment, has been attempted without success.”

It seems to me that sitting in jail is a far more extreme punishment than simply telling the prosecutor, “Sorry, your witness can’t testify because they wouldn’t cooperate.” But that is the law. We have to try the “lesser” sanction of throwing them in jail before the court will grant the “ultimate” sanction of exclusion.

John’s 2026 Update: Zoom, Marsy’s Law, and the “Ghost” Witness

Note: Since this article was written, technology and Victim’s Rights laws have complicated this process.

1. The “Zoom” Deposition Excuse In 2026, almost all depositions are conducted via Zoom.

• The Good: It is harder for a witness to claim they “couldn’t make it” when they just had to open an app on their phone.
• The Bad: Witnesses now claim “technical difficulties” or “no internet” to avoid appearing.
• The Strategy: We now record the “waiting room” screen to prove we were there and they weren’t. If they claim tech issues, we ask the Judge to order them to appear in person at the courthouse for the next attempt.

2. Marsy’s Law Friction Florida’s Marsy’s Law (Victim’s Rights) has emboldened some alleged victims to refuse depositions, claiming they have a “right to be free from harassment.”

• The Law: Marsy’s Law does not abolish the defendant’s right to discovery.
• The Fix: We have to be more careful. We often have to litigate “Protective Orders” where the State tries to limit what we can ask. But they still have to show up.

3. Judges Hate Issuing Writs In 2026, judges are under immense pressure to keep jail populations low. They hate signing Writs of Bodily Attachment for non-violent witnesses.

• Our Argument: “Judge, I don’t want to put this person in jail either. But under State v. Gonzalez, I have to ask for this Writ before you can strike them. If you won’t sign the Writ, you must Strike the witness.”
• This forces the Judge’s hand: either enforce the subpoena or dismiss the witness.

Don’t Let Them Hide

If a witness is hiding from us, they are usually hiding something that helps your case. We do not let them off the hook.

Call me at (407) 423-1117. Let’s make them answer the hard questions.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.