How can I convince my manager to allow me to take leave to be a prosecution witness in the USA?

Question

Per this question I posted on Law Stack Exchange site, I will soon be a witness in a criminal trial of another in the United States, for which I was also a victim. The crime being prosecuted is the same crime for which I was a victim. The crime is assault and burglary and is being prosecuted under state (vs. federal) jurisdiction.

The state (i.e. prosecution) requested I testify and let me know I will be a significant witness for their case against the defendant. If I can’t testify, there is significant likelihood of jury acquittal or nolle prosequi. If the jury acquits, the Fifth Amendment double jeopardy clause bars subsequent prosecution for the same crime.

I have important job commitments (meetings with internal clients, being on call, my own and team members evaluations being due) during the days defendant will be on trial. Our company is under a hiring freeze and new team members will not be approved. Backfilling my role during my time testifying in court will be difficult as I am in a lead role managing a team. As a result, my manager is unwilling to allow me to take leave to attend court to testify.

As the responses in the linked question states, a face-to-face cross examination by the defense counsel will be required and a prerecorded disposition under oath will be disallowed due to the defendant's Confrontation Clause rights under the Sixth Amendment of the US Constitution.

As I am a victim of crime, I have a strong interest in seeing that the defendant is convicted. My testimony as a witness present on scene is important. This will be the only trial if acquittal were to occur.

What can I do to convince my manager to allow me to take leave to testify in court for prosecution?

Answer 1

If I can’t testify, there is significant likelihood of jury acquittal or nolle prosequi. If the jury acquits, the Fifth Amendment double jeopardy clause bars subsequent prosecution for the same crime.

Yes, but if they nolle prosequi, then double jeopardy does not apply. Which is why that is a likely result if the complaining witness is not available. Because it does not bar a subsequent prosecution. The bad part there is that the defendant might be let out of jail then, as there would be no active trial. If the defendant is already out on bail, then that's less of an issue.

meetings with internal clients, being on call, my own and team members evaluations being due

Of these three, I see only "meetings with internal clients" as being a serious issue for the one or two days that you are giving evidence. And that seems a feasible block for not being able to attend meetings. There should be some substitute for being on call during work hours. Even if testifying, you should still be able to be on call outside of work (court) hours. And evaluations are simply something that you will need to manage. Again, spend time outside of normal work hours on them.

I would be surprised if scheduling conflicts were new to the prosecutors. Ask the prosecutors what they want you to do. Allow them to settle the case? Answer a subpoena? Call you as a witness first so as to have a predictable appearance time? Reschedule the prosecution for after the holidays? Do they want to call your manager (might be a good lead up to a subpoena or rescheduling your appearance)? Would your manager or other coworkers have any relevant testimony (their presence could also be compelled via subpoena if so)?

You also might talk to Human Resources (HR). What is the corporate policy on responding to a subpoena (assuming you are served)?

Also note that while a simple recorded video statement does not meet the confrontation clause, a session attended by the defense attorney could. The defendant might need to be there as well, but the judge does not. The most important part of the confrontation clause is the ability to cross examine. If the defendant's presence is also required, that also seems easier to schedule than time before the judge. It's dead easy if the defendant is in jail.

You might get better feedback on Law.SE if you ask them "Can a manager refuse an employee time off to testify in court?" Also, you should specify the state of prosecution and (if it differs) the state where you are employed. Also, is there a statute of limitations? Are you running up against it? I.e. is it prosecute now or not at all.

Your existing question asks if you can give a simple video statement, presumably without cross examination. A response was that you need to submit to cross examination. It is of course possible to submit to cross examination remotely. That happens all the time in civil cases and with third party testimony. Whether that is something that the court would allow in your case may be a different story.

Answer 2

What can I do to convince my manager to allow me to take leave to testify in court for prosecution?

Have the prosecution issue a subpoena for your testimony. That would legally compel your presence and (unpaid) leave.

In the unlikely case that your employer subsequently decided to fire you, you would have a great cause for an action for unfair dismissal.

Answer 3

What can I do to convince my manager to allow me to take leave to testify in court for prosecution?

It's not your job to convince your manager of anything. Treat this situation no different than if you woke up sick one day and could not make it to work. You let your manager know that you are unable to make it and let them know the reason and you just don't show up. Obviously, in this case you let your manager know well ahead of time and not the morning of your testimony. If they require some sort of proof once you return ( e.g. a doctors note in the case that you are sick ), I am sure that you would have no trouble getting a letter from the prosecutor or some agent of the court if you don't already have one.

If the manager takes issue with your decision when you return, you escalate this through the proper channels at your company. Also, I would seriously consider looking for a new company to work for if you actually have any issues with such a serious matter and the company is unwilling to accommodate you.

Answer 4

Okay, so we have some options here:

For the sake of the answer, I'm going to assume that you are only going to be present for when you have to testify, rather than sit through the whole trial, in order to minimize how much time you are absent.

Option 1, the Direct Method: "Boss, I will not be coming in on these days. You can either approve a leave of absence or I will develop a nasty case of vomitting that lasted only 24-48 hours" - this will likely piss your boss off, but it does set a very clear expectation that you are not coming in.

Option 2, the 'I don't need the job, Nuclear Method': I can't think that any business would be looked upon favorably in the community if word got out that they weren't allowing a Victim of a Crime to testify in court, to get Justice against their victimizer. I'm sure there is some local news entity that has a sufficiently 'stick-it-to-the-man' leaning that would love to write a hit piece about a company that did this.

However, as per tag line - this is the Nuclear option.

Option 3, HR and Higher-ups (semi-Nuclear): You go above and around your boss, explain to HR and your Bosses boss that you need to take these specific days off for a Legal Matter, that you are a witness in a court case (they don't need to know you are the victim) and if you can get the Prosecuting attorney to write you a letter on a legal letterhead explaining you are pivotal to the case etc. - then see what they say.

Option 4, Alternate arrangements: So, if you can get a letter from the Prosecutor, this would help in this scenario - Depending on your job, you may be able to work outside your normal hours (as in, go to court during the Day, work as if you were at work on that night) so that the company still gets your 8 hours. If it's a job that requires a physical presence (like Shift work) ask if you can get put onto a different shift to allow you to attend court, whilst still making up time. If neither of these are applicable - try and find out if you can arrange things in such a manner where you minimize the impact - such as agreeing to work extra hours the week before trial so that you are ahead of the deadline.

Option 5 - Quit: I mean, it's fairly self-explanatory, but I would seriously question my continued employment with a Company that would deny leave for such a serious matter. Denying leave cause you want to go to the Bahamas for some Sun and Fun whilst things are crazy - sure - but things like Legal stuff, Medical Stuff and Child stuff (within reason) are hard boundaries for me - and I would start investigating alternate employment. And I can guarantee you, if they are up a certain creek at the moment with a hiring freeze and can't back-fill your role for a temporary absence, they are gonna struggle to back-fill your roll for a permanent absence.

Ultimately, you are gonna have to negotiate with your boss, I'd try and limit it to just the Days you are going to testify, I would be surprised if your testimony would last more than several days - and then try and find a solution with your boss where you minimize the impact to the business (which they are justifiable concerned about) in exchange for you going to trial.

Answer 5

From your comment, testifying would mean missing work for 2-3 days, which is about the same amount of time (or less) you would likely be gone if you were to come down with a sudden illness. What would your boss do if that were to happen?

The nice thing here is that it won't be sudden. You know what days you will need to testify and can make a plan. Move your meetings, have coworkers cover your essential tasks for those days, then inform your boss that you won't be available those days. It's not a request, you have stuff to do outside of work. It happens. Just like if you were sick, they will figure out how to deal with your absence and the business will survive.

They would be absolutely foolish to penalize you for having obligations outside of work, especially if you proactively make a plan to minimize the impact of you being gone. If you feel like you need to extra leverage, follow Joe Strazzere's answer and request a subpeona so you are legally compelled to testify. Then just go and do your part to bring a dangerous criminal to justice.

Answer 6

I feel your relationship with your boss may have already taken some damage, and not just for the obvious reason. If you don't testify, and the defendant is acquitted, this might become a lifelong regret. Aside from the seriousness of that, in your position I'm pretty sure I'd resent (and lose some respect for) my boss for putting commercial work commitments ahead of something that matters so much, both personally and to wider society.

I think suggestions to quit made by other answers are premature (and don't acknowledge the immense pressure that mortgages, medical coverage, family expectations and the fear of losing employment represent). Having said that, I think my attitude would be damaged, and it's unlikely I'd be able to stay in work there long term.

You're damned if you do, and damned if you don't. So go with your conscience, and do the thing you'll least regret. By which I mean, don't predicate your decision on whether you're successful in convincing your boss. Try by all means, but the decision must be yours, and not theirs.

The 'obvious' reason I alluded to at the start is that management is willing to damage their relationship with an important employee - you - due to their failings in management. No business should have single points of failure - individual systems or employees whose constant presence is essential to business operations. There always need to be backups. Knowledge, expertise and the ability to cover unexpected loss of personnel is something good management makes sure is taken care of. In this case, either your boss or their boss etc. is unwilling to invest in the necessary level of redundancy, and they are unwilling to take responsibility for that failure. They are making it your fault. If you were hit by a bus tomorrow, whose fault would it be that the clients were let down? Management's fault, for not having measures in place ahead of time. At the same time, clients are (usually) human, and I believe most of them would be understanding given a brief and honest explanation of your absence.

I would also argue that your boss(es) have not taken into account that damaging a relationship with a valuable employee has an actual cost to the business, and in the long term it might exceed the immediate cost of your absence.

(Edit: I forgot that you too are in management. So I'll leave it up to you to decide whether you could be better preparing your team to manage without leadership in an emergency. How realistic that is obviously depends on how long you've been working together, but perhaps you have time to start preparing them now for some of your job functions if you do go ahead with the trial. It also seems unlikely that timely member evaluations really are that important if you're already on a hiring freeze. It's not like you're going to replace any of them, so surely those evaluations can wait a week?)

Answer 7

The obvious answer is to take these few days as paid leave planned in advance.

If your contract has no such provision, and your boss/manager does not consent to unpaid leave, and you are not legally required to testify (see @Joe Strazzere's answer), then this will be one of life's difficult choices for you. Either choice would be justifiable.

If you choose to testify anyway, I would go about it like this. Go to your manager and explain that you have given the issue serious thought, that you acknowledge and appreciate the burden it will put on the team for you to be absent for that time, but that you place greater weight on keeping this criminal behind bars. That you have made your decision and you hope he understands. Would he allow you to take the time as unpaid leave? Hopefully your manager will grudgingly consent. But if not, your conscience will be clear.

Answer 8

First and foremost: Get a lawyer.

You're way out of your depth without one.

As a result, my manager is unwilling to allow me to take leave to attend court to testify.

Frankly I think the option you want here is to get a new job.

Why would you want to work for people this obnoxious?

IANAL, but I think you need real legal advice from an expert, not from an Internet Q&A from people who simply do not have all the legal facts or know your contract. Note that it's possible you yourself may be in trouble with the court if you have been subpoenaed as a witness. You really need solid legal advice, not opinions.

But regardless, when the dust settles, get a new job ASAP. That manager and company are scum. That's my two cents.

Answer 9

If you want to get your boss's freely given consent, rather than forcing their hand by getting yourself subpoenaed, you could try to reduce what you're asking for to something minimal.

1. Assure the boss this is only a small time commitment - if they're worried you'll be out for weeks on end (as might be the case for jury duty) make sure they realise you will only be away for a day or two.

2. Make a plan to cover your absence, requiring only a bit of your boss's time. Your boss might cover your meetings with clients, but why not delegate being on call to your trusted subordinates, and get those employee evaluations done earlier?

3. Make it clear to your boss that this is important to you - if you've kept your business private and given them the impression someone else was the victim of this crime, they might be under-estimating your strength of feeling.

4. Appeal to your boss's sense of justice, their willingness to help you out as you're a good employee, their desire to be a supportive manager, or their willingness to trade banked favours - whichever you think they'll respond best to.

Now you're asking them to cover one or two meetings and approve your plan - rather than asking them to sort out a replacement for an unknown period.