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 select ing 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 t he 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 t he

defense theory wil l come across in a cohesive presentation.

A second, almost equally import ant 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 jurisdict ions that permit jur y trials in juven ile cases). This makes the demeanor

of defense witnesses critica l—their apparent honesty, sound judgment, equanim ity, 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 importa nt consideration in selecting witnesse s is whether the witness has

prior convictions that are admissible under the impeachment doctrines described in

§ 30.07(d) infra—bec ause of the prejudice to both the witnes s’s credibility and the

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

tions. Counsel should never put a witness on t he stand without knowing whet her the