Abstract

This Article aims to reorient the conversation around "failure-to-appear" (FTA) in criminal court. Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants, in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: It is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or lawyer failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for defendants. Police officers, victims, other witnesses, and private attorneys each failed to appear at rates substantially higher than defendants. In short: FTA is a systemic phenomenon.

The systemic nature of FTA calls into question the extreme asymmetry between the treatment of defendant and non-defendant FTA. Bail reform has generated intense debates about when cash bail, detention, and other pretrial interventions are warranted to ensure defendants’ appearance. Given that witnesses and lawyers also have a legal duty to appear, the systemic nature of FTA requires more comprehensive thinking about how best to get people to court and when restrictions on liberty are appropriate.

Systemic FTA also has systemic consequences, because when essential witnesses don’t show, cases are dropped. FTA thus serves a regulatory function, providing a check on the nature and volume of criminal adjudications. Sometimes this function seems beneficial, as when witness FTA carries information about the strength or worth of the case. But sometimes it seems like a problem. The sheer volume of police officer FTA creates an impression of arbitrariness, dysfunction, and disrespect. Other aspects of this regulatory dynamic are more ambiguous. For instance, victim FTA rates are so persistently high that many appear to be effectively "opting out" of the criminal proceeding. This Article aims to draw attention to systemic FTA as an important feature of contemporary U.S. criminal legal systems, identify the core questions that it raises, and lay a path for future research.