Clients want to explain why the prosecution’s case is wrong.   Sometimes it’s because of their perception of the law (but there’s no pictures of me doing it, so they have no proof), but more often it’s a dispute on the facts (he’s a liar, I never did/said that).  With this introduction, we enter the Wide World of Witnesses (with apologies to Roone Arledge).

It’s not that lawyers don’t believe their client.  To the contrary, we hear the same thing over and over, and truly believe it’s accurate.  The problem is that a factual dispute is resolved by a trial.  We don’t trot down to the prosecutor’s office, explain that our client tells us that it never happened, obtain a heartfelt apology for the cops’ mistake and everybody goes home happy.  This is what we fight about.

The analogy of the criminal defense lawyer’s weapons is always good for matters such as this.  Witnesses are the bullets in our gun.  Without them, we are shooting blanks.  Yes, we can cross the cops to death about their story, but they are trained to hold firm in their position and use vague language on the stand to avoid getting caught in a trap.  Even though we may score a few points, rarely does a cop or agent break down on the stand and admit he fabricated something.  It’s happened, but very rarely.

We prove things through evidence, including the testimony of witnesses.  This is where a defendant’s understanding tends to get a bit fuzzy.  On day 1, defendants tell us that they have witnesses.  Tons of them.  They have friends, family, pastors, co-workers, all of whom will definitely come forward and tell the truth.  We tell them how wonderful that is, and that we look forward to interviewing them and preparing to defend against this spurious lies. 

But criminal defense lawyers know a few things that criminal defendants have yet to learn. 

1.  Nobody loves you when you’re down and out.  When you get arrested, you find out who your real friends are.  People who were only too happy to hang with you before suddenly won’t take your calls.  They avert their eyes when they see you on the street.  They are always busy and can’t stop to speak with you.  You want to believe their excuses, but you eventually realize that they want nothing to do with you.  You have become a pariah.

2.  Nobody wants to put themselves in the line of fire.  Standing behind the defendant puts a witness on the opposite side of the government.  It taints the witness as a friend of a criminal.   It makes the witness a target.  It’s bad enough that the defendant is the subject of a criminal prosecution, but nobody wants to invite the scrutiny of law enforcement.  Why paint a target on your own back and beg the government to try its luck?

3.  The pressure is overwhelming.  One of the requirements of the defense is to provide basic pedigree information to the prosecution in advance of calling someone as a witness.  We are obligated to give the government a chance to check our witness out beforehand, another one of those one-way requirements that the law imposes to make sure that defendants don’t get a level playing field.  We know that the witness will get a knock on the door by the cops or agents, reminding them in veiled language (or if the witness is not too bright, in quite vivid language) that they will become the enemy of law enforcement if they help the criminal, and are likely to be prosecuted for obstruction of justice because they will, by definition, be lying on the stand when they challenge what the cops or agents have to say.  This is not, by the way, witness intimidation, but merely good police work.  Even though I tell witnesses in advance to expect this, it is still has a remarkable impact on their willingness to testify.

4.   Good testimony is hard to find.  Witnesses are always prepared in advance, by teaching them how to listen to questions, respond in an appropriate fashion, deal with objections and not cut their own throats by vomiting words to fill the silence.  No competent lawyer puts an unprepared witness on the stand.  And still, it’s about 50/50 that it ends in disaster.  Being a trial witness is unlike anything else a person has ever done.  While being prepped, they can’t stay in role, ask questions back and break every rule of testifying that they’re given.  They insist they will do it differently when it’s the real thing.  They won’t.  They never do.  If they can’t testify properly in the lawyer’s office, they will invariably collapse under the pressure of the courtroom.  Testifying is counterintuitive.  It lacks the give and take of normal communication, and defies our normal desire to work with the questioner to get to the points we want to make.  It isn’t at all like it appears on TV.  It requires giving up control to the questioner, something people find extremely difficult to do.  While it may be understandable, it’s unhelpful.  It means that even if we can find a witness and get him on the stand, we may still be unable to get him to give us what we need in a manner that will help.  And he may, inadvertently, cut our throat.  And his.

There are plenty of variations on the problems faced by the defense with witnesses, and I’ve hardly exhausted them in my short list.  These are the realities faced by criminal defense lawyers who have had the pleasant experience of trying cases and putting (or trying to put) witnesses on the stand for the defense.  Imagine the troubles faced by the lawyer who hasn’t had the experience.  Prosecutors don’t have the same problems as defense lawyers.  That’s another reason why their experience doesn’t translate well.

These problems aren’t insurmountable.  We do get witnesses to testify, and we get them to provide the testimony needed to mount a viable defense.  It just takes a lot of work and experience.  But that’s why people retain us.