Many of you have commented recently on the defense and prosecution witness lists, and I have noticed some fundamental misunderstandings about their use in criminal prosecutions.
We start with the general rule that a lawyer must list each witness whom he or she intends to call to the stand to testify during the trial. If the lawyer calls a witness to the stand who is not on the list, the opponent generally will be entitled to a continuance to interview the witness and prepare for cross examination. In rare cases, upon a showing of substantial prejudice, the judge might bar the witness from testifying.
Therefore, trial lawyers cast their nets far and wide for witnesses to include on a list. They typically will include everyone whom they might call, whether or not they actually intend to do so. This is an illustration of the principle, better to list than to be sorry.
Prosecutors start out by listing all of the cops who had anything to do with the investigation and the chain of custody for evidence they plan to introduce at trial. Then they add all of the forensic analysts and experts whom they intend to call. Finally, they add all of the civilian witnesses whom they might call.
In a complex homicide prosecution it is not unusual for the prosecutor’s witness list to exceed 100 people.
Even if defense counsel believe that they might only call the defendant, and perhaps not even him, they still feel like they need to have a witness list with a bunch of names on it, if only for the sake of appearances. Perish the thought that someone might think the defense should not be taken seriously, given the lack of a long list of witnesses. Therefore, they will add friends and family of the defendant and a lot of cops who investigated the case, however minimal their actual connection to the case might be.
Neither side has to list rebuttal witnesses, since it is difficult to foresee whom you might need to call to rebut witnesses who have not yet testified.
In Florida, each side gets to depose the other side’s witnesses and through this process each side can pretty accurately determine who will testify and who will not. Usually, the actual number of witnesses who testify will be far less than the number of witnesses listed. For example, if three witnesses saw the same thing and the testimony of two witnesses would be merely cumulative of the first witness, there would be no reason to call the other two witnesses to the stand.
The rules of evidence also exact a toll on the number of witnesses who testify. For example, the hearsay rule results in the exclusion of many witnesses who heard other witnesses say certain things. The lawyers end up calling the witness who made the statement and excuse the witnesses who heard it.
Another reason to not call a witness to the stand arises when the lawyer is uncertain if the witness will waffle or change their story. The lawyer may decide not to call the witness for fear of weakening their case. For example, this situation might come up for O’Mara regarding whether he calls the PA from the clinic to testify about Zimmerman’s “broken nose” and head wounds.
If he does not call the PA, do not be surprised if the prosecution puts two and two together and calls her to the stand as a rebuttal witness, assuming Zimmerman testifies during the defense case.
Finally, keeping the opponent’s supporters out of the courtroom is a little known reason to the public, if not the lawyers, to increase the size of a witness list. People listed as witnesses are excluded until after they have testified and been excused from remaining in attendance by the judge. Until then, they are forbidden from discussing the case with others or sitting in the courtroom watching other witnesses testify. For this reason, lawyers often list the names of potential supporters of the opposition party, even though they do not intend to call them to the stand, in order to keep them out of the courtroom during the trial. They hope the jury will notice the absence of supporters and conclude that no one supports them.
Excluding the opponent’s supporters by putting their names on your witness list is a really sleazy trick, but it happens nevertheless. For example, consider whether the defense will list Tracy Martin as a potential defense witness ostensibly because he did not immediately identify Trayvon as the person screaming on the recording that Serino played for him at the station house. By listing him as a witness and not calling him, the defense could effectively exclude him from the trial and he would not be able to support Sybrina Fulton as she sits through it all.
I note parenthetically that the State almost certainly will call her to the stand to identify Trayvon as the person screaming for help.
Hopefully, Judge Nelson will accommodate both parents and allow them to sit together throughout the entire trial and I hope she makes the same accommodation for Zimmerman’s family.
After all, fair is fair.
The point is lawyer’s play games with witness lists in order to fool each other and the court. Therefore, you should not assume anything about the strength or weakness of a case based on the length of the witness list.
As always, the strength or weakness of the relevant and admissible evidence is what really matters and the witness list only provides some clues as to the identity of the actual witnesses who will testify about that evidence.
With the exception of Zimmerman’s cellular records and medical records and Martin’s school records, which are private and will not be disclosed unless they are deemed relevant and admissible at trial pursuant to the rules of evidence, we have seen most of the evidence and have a far better understanding of the case than we would have from merely reading the names on a witness list.
I hope this article assists all of you to better understand the use of witness lists in trials.