RS 257.1 - Exception for material witness warrants for victims of sex offenses and intimate partner violence; legislative intent
A. The legislature hereby finds and declares that domestic violence and sexual assault are major public health problems and violations of human rights. The legislature further finds that in order to be in compliance with the Violence Against Women Act, this statute is meant to discourage the use of material witness warrants and enforce the premise that the use of material witness warrants for victims of intimate partner violence or sex crimes is an extraordinary measure that should be used only when absolutely necessary and that any incarceration shall occur only after all other remedies have been exhausted in order to prevent further victimization and trauma to the victims.
B. A judge shall not order a material witness warrant to secure the presence of a victim listed in the indictment or bill of information in a misdemeanor prosecution in cases where the instituted charges are one of a sex offense under R.S. 15:541 or a listed victim in the indictment or bill of information of a misdemeanor offense committed under R.S. 14:34.9 (battery of a dating partner) or R.S. 14:35.3 (domestic abuse battery) that is a pending matter before a court.
C.(1) A judge shall not order a material witness warrant to secure the presence of a victim listed in the indictment or bill of information solely for the purpose of securing the attendance or testimony of a victim listed in a felony prosecution in cases where the instituted charges are either:
(a) A sex offense under R.S. 15:541.
(b) An offense committed under R.S. 14:34.9 (battery of a dating partner), R.S. 14:35.3 (domestic abuse battery), R.S. 14:37.7 (domestic abuse aggravated assault), or R.S. 14:34.9.1 (aggravated assault upon a dating partner).
(c) A case where the victim listed in the indictment or bill of information of the current felony charge pending before the court is the current or former spouse or the current or former dating partner as defined by R.S. 46:2151, regardless of whether or not the individuals reside in the same household that is a pending matter before a court.
(2) Notwithstanding Paragraph (1) of this Subsection, a judge may order a material witness warrant to secure the presence of a victim listed in the indictment or bill of information in a felony prosecution if the applicant presents an affidavit to the judge attesting to all of the following:
(a) The efforts made by the applicant to secure the victim's appearance in court.
(b) That the testimony of the victim is essential to the prosecution or defense of a criminal proceeding.
(c) The filing of the affidavit made pursuant to this Section is filed in compliance with R.S. 46:1844(W).
(3) Only a qualified victim for which a material witness warrant is being sought pursuant to this Section shall have standing to raise the protections provided in this Section.
D.(1) When a witness who is a victim of any of the offenses enumerated in Subsection B or C of this Section is secured pursuant to a material witness warrant issued by a judge, notification shall immediately be made to the judge who signed the warrant and the duty judge or magistrate, as well as the applicant who requested the order. Upon notification that the victim has been secured, the victim shall be brought before a judge pursuant to the following:
(a) Inside of the jurisdiction where the material warrant was issued, the victim shall be brought before a judge on the next scheduled business day.
(b) Outside of the jurisdiction in which the warrant was issued, the victim shall be brought before the judge as soon as practically possible.
(2) Once the victim is brought before a judge, the judge shall explore all available alternatives to incarceration to ensure the victim's appearance in court.
(3) The victim shall be notified of the right to retain counsel or, if indigent, shall be authorized to apply for counsel for a bond hearing.
E.(1) There shall be a presumption that a victim, as defined in Subsection C of this Section, be released on his own recognizance.
(2) The court shall consider all least restrictive means to ensure the victim's appearance in court pursuant to a subpoena, including but not limited to imposing conditions of release such as:
(a) Bond supervision or GPS monitoring to be paid by the applicant of the warrant.
(b) Treatment facilities, shelters, or lodging paid for by the applicant of the warrant.
(3) The court shall notify the victim of services offered by community partners or victim witness assistance coordinators.
F.(1) The court shall exhaust all alternatives prior to ordering the incarceration of a victim as defined in Subsection C of this Section.
(2) If a judge determines there are no alternatives that will secure the victim's testimony, then the judge may order that the victim be placed in protective custody. If practically possible, a victim shall not be incarcerated in the same institution as the defendant.
G. Nothing in this Section shall be construed to limit the authority of the district attorney or defendant from securing a witness outside the jurisdiction of the court. Nothing in this Section shall be construed to create a release mechanism for a victim if the victim is incarcerated for any reason unrelated to a material witness warrant sought under this Section.
Acts 2019, No. 410, §1, eff. June 11, 2019.