Legal Question in Constitutional Law in California

If any prosecution witness (including the victim) doesn't show up, the judge will ask the D.A. if the witness was subpoeanaed. The answer will be yes. The judge will then issue a bench warrant, and a couple of sheriff's deputies will find the witness and bring him to court -- in chains, if need be.

If the deputies can't find the witness, the trial may be able to proceed without him. There is often so much evidence that the absence of a given witness -- even the victim himself -- will not derail the prosecution.

Note that if the witness doesn't show up because he has been threatened or intimidated, the people who scared him off have committed a felony. They will likely have their own criminal trial in the not-too-distant future.

Unfortunately, there are not enough facts to give you an accurate answer. Are there other people that can testify about the alleged crime? Is their any video evidence? Is there an admission or confession? Is their a general time waiver? What is the last day to start trial? Can the witness' absence be attributed to the defendant?

Assuming Tuesday is the last day to start trial and the DA's office has no evidence indicating your brother or his associates had anything to do with alleged victim's absence, the DA may:

(1) ask for a continuance (most likely option),

(2) "trail" the proceedings within the time waiver (fancy word for continuing case)

(3) dismiss and re-file the case (if DA loses continuance motion)

(4) elect to proceed the trial.

Obviously, the best approach for the DA's office is to seek a continuance to delay the start of the trial until they can secure the witness' appearance.

If they cannot continue the case, they may be forced to dismiss and re-file the case the same day. The entire criminal process starts over; your brother will likely be arraigned that same day on the same charges. They cannot dismiss and refile the case again.

The last option for the DA is to go forward with the case; this would occur if this case has been dismissed and refiled. They certainly will start the trial with other witnesses, hoping they can make a case without the alleged victim. There are many constitutional issues in this approach--consult with a defense attorney for specifics.

In the meantime, DA investigators will be asked to find and 'escort' the alleged victim to court. I have seen instances where judges have jailed witnesses who have disobeyed subpoenas and made it clear they will not appear to testify pursuant to a court order.

If the DA cannot prove the elements of the attempted murder during their case in chief, the defense will move to dismiss the case on grounds that the state failed to meet all the elements of their case.

The last approach, is too risky to try first since they will not be able to refile a criminal case (same charges) once the jury has been sworn in (or had a meaningful start to trial).