Art. 218. If, duly summoned, the witness fails to appear without justifiable reason, the judge may request the police authority to present him or her to be conducted by a bailiff, who may request the assistance of the public force.
Coercive conduct of the witness, the accused and the victim
Absence in the Plenary of the Jury: The witness will answer for the crime of disobedience, and is still subject to the payment of a fine provided for in article 458 : “ If the witness, without just cause, fails to appear, the presiding judge, without prejudice to the criminal action for disobedience, the fine provided for in paragraph 2 of article 436 of this Code will be applied ”.
Driving the accused and the victim: See article 260 on driving the accused and 201 on driving the victim.
Defense subpoena waiver: If the defense declares that the witness will appear regardless of subpoena, there is no obligation on the judge to subpoena him or to order his coercive conduct if he does not appear.
Nullity due to lack of coercive conduct: If the witness, subpoenaed, does not appear and the party does not dispense with his presence, the judge must determine his coercive conduct, under penalty of nullity if he does not do so.
Justified absence: There is no disobedience, nor should coercive driving be ordered, if the absence is justified (illness, hospitalization, accident, for example). A new date for the inquiry must be designated.
Doctrine
Ada Pellegrini Grinover: Ethics, abuse of process and resistance to judicial orders: the contempt of court . s3.amazonaws.com.
Non-appearance, reversal of order and required defense agreement
Fractionation of the hearing: If it is inconvenient to carry out the immediate coercive conduct, the hearing may be divided, hearing the witnesses present, and leaving the defaulting witness to be questioned in a new hearing to be appointed. However, if the absent witness is from the prosecution, those from the defense cannot be questioned, unless the defense agrees to reverse the order. The inversion of the order in the questioning of witnesses, without the agreement of the defense, is capable of generating nullity. It should be noted, however, that if the defense witnesses are only attestations of the accused’s conduct, and therefore did not witness the alleged fact or its relevant circumstances, there is no impediment to their being heard first, once that there will be no damage.
