Section 6.17 Defense Witnesses

• Library: Criminal Practice 2012 Supp

B. (§6.17) Defense Witnesses

The preliminary hearing is conducted in much the same manner as the trial of a criminal case in circuit court, including the right to call witnesses on behalf of the defendant. Rule 22.09(b). Only in rare instances is it recommended that the accused call a witness in a preliminary hearing. It may be useful to call a witness to preserve their testimony, provided counsel has a certified court reporter on hand. As stated in §6.8 above, defense counsel may want to make note of the available witnesses for the state and call any of those witnesses not already called by the prosecutor. In addition, if there is a favorable witness counsel feels may not be available at the time the case proceeds to trial, counsel may want to call the witness for the preliminary hearing to preserve testimony. If the witness becomes unavailable for trial, counsel will have preserved the testimony (under oath and duly recorded) and may introduce that testimony in lieu of the appearance of the unavailable witness. Rule 25.13; § 492.400, RSMo 2000.

In addition to concerns with subsequently unavailable witnesses, there may be instances when counsel wishes to give a sympathetic court a basis to...