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Taking care of witnesses

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In criminal trials, the prosecutor has the burden of proof. Often the defense puts on no witnesses and fights for victory through arguing suppression, acquittal for insufficient evidence to prove a crime, and reasonable doubt.

Just as the pause can be as important in a musical masterpiece as the notes themselves, a criminal defense lawyer needs to have his or her witnesses, exhibits and evidence at the ready whether or not they will be presented, and to have the insight and self control not to present some or all of those witnesses and evidence depending on how the trial is going and how strategy consultations with the client are going.

One of the best things about my two years of doing almost only civil trial litigation between leaving the public defender’s office and becoming my own boss was the necessity of selecting, subpoenaing, preparing, managing, and presenting witnesses. As the plaintiffs’ lawyer, I had no choice but to present witnesses.

Here are some things I have learned along the way in preparing witnesses for trial:

– In general, get them correctly subpoenaed and personally served the subpoenas, and do so early on. Even the client’s best friend who swears s/he needs no subpoena may have a change of mind when his or her employer says s/he must stay chained to the desk for a critical project that day. When the subpoena is served, get all the witness’s contact information, and have the witness asked to call the lawyer who has issued the subpoena.

– Know which courts require a witness fee to accompany a subpoena to make it effective. Calculate the fee correctly. I am only aware of this requirement applying to civil cases.

– Know the extent to which the law allows your side to pay the witness for transportation, hotel, and lodging.

– Take care of your witnesses. Especially if you are on the defense side, it can be all the harder to estimate to the witnesses the day and time they are likely to be needed to testify, because precision is not available about the date that the prosecution will rest.

– Arrange qualified language interpreters early on for your client and witnesses as needed. Assure the interpreters are reliable and will not leave you in the lurch if they have competing obligations. (Once, an otherwise stellar Spanish interpreter told me last moment that he was not available and sent a substitute, with limited time for me, him and my client to break each other in.) Find out whether the court provides no-cost quality interpreters, which is routine in the criminal courts where I practice (the free part, not always the quality part outside of the federal courts and D.C. Superior Court).

– Fully prepare your witnesses — including the client as a potential witness — which goes without saying.

– Do not be surprised if the witness calls you frantically as inconveniently as late at night the day before trial, worried about work and family obligations, or illness — which sometimes is a cover about fear of testifying or aversion to the time imposition. Last minute  unexpected external matters like this are but one reason to be fully prepared for trial well in advance.

– Nothing beats experience in dealing with witnesses, including when they are numerous.

The foregoing are but a few initial thoughts. I welcome yours.