Subpoenaing and Preparing Defense Witnesses to Testify at a Motions Hearing or Trial

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 221-235

221

CHAPTER 10

SUBPOENAING AND

PREPARING DEFENSE

WITNESSES TO TESTIFY

AT A MOTIONS

HEARING OR TRIAL

PART A. SELECTING AND SUBPOENAING

WITNESSES

§ 10.01 Selection of Witnesses for a

Motions Hearing or Trial

The principal criterion in selecting witnesses for an evidentiary motions hearing (such

as a suppression hearing) or for tria l is whether a witness has something to say t hat mate-

rially supports the theory of the defense. Although counsel’s search for sources of proof

must be wide-ranging, counsel must be highly selective in what s/he actually puts on at

the motions hearing or t rial. It is vital that the evidence be tightly organized so that the

defense theory will come across in a cohesive presentation.

A second, almost equally important criterion in selecting witnesses is whether the

witness will improve or depreciate the atmosphere of t he def en se. To so me ex ten t a res po n-

dent is identified with his or her witnesses by the judge (and even more so by jurors, in

those jurisdictions that permit jury trials in juvenile cases). This makes the demeanor

of defense witnesses critical—their apparent honesty, sound judgment, equanimity, and

likeableness. A personable witness might be called to testify cumulatively on a minor

point, whereas a shifty or abrasive witness would not be similarly used.

An important consideration in selecting witnesses is whether the witness has

prior convictions that are admissible under the impeachment doctrines described in

§ 30.07(d) infra—because of the prejudice to both the witness’s credibility and the

atmosphere of the defense if the witness is impeached with his or her prior convic-

tions. Counsel should never put a witness on the stand without knowing whether the