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Calling of Witnesses

A court’s authority to call witnesses for testimony is recognized and provided in both civil and criminal cases[i].  For calling a witness to a court as court witness, consent of both the parties is not a prerequisite[ii].  Although in an adversarial process calling of witness is a function of the parties, in most criminal cases the practice of calling witness by the prosecution is seldom followed and it is not considered as desirable.

Generally, following witnesses are called by the trial court as court witnesses:

  • persons who were personally present at a transaction that forms the basis of the prosecution[iii]; or
  • persons whose testimony is material to the issues in a case; or
  • persons who are co-defendants, accomplices, and co-indictees properly.

In criminal prosecution, a court can call a witness for testimony upon request of the prosecution.  The rule permitting a trial court to call and examine a witness at the request of the prosecution is considered as quite reasonable, well recognized, and productive of no harm.  By extending to attorneys a right to cross-examine and impeach court witnesses on material matters, the rule also prevents failure of justice many times[iv].

However, the prosecution does not have a duty to call and examine a witness such as an eyewitness if their testimony is believed to be unreliable, surplusage, or irrelevant after examination or investigation.  They also do not have an obligation to examine each and every witness whose name is indorsed upon an indictment or information[v].  If any material witness is failed to be called by the prosecution, then a defendant under the fundamental law of the state can issue process to compel the attendance of witnesses upon approval by a court.

A trial court has the discretion to call a witness who is believed to be hostile by the prosecution.  Such witnesses may be cross examined by both the state and defense attorney[vi].  A trial court can also call a witness as a court witness if his/her expected testimony conflicts with prior statements.  Such court witness can be led, cross-examined, and impeached by both parties[vii].

In civil cases, names and addresses of witnesses are obtained either by depositions, interrogatories, or pretrial court order.  A witness list approved by a court shall contain the names and addresses of all persons whom a party considers as necessary witness for some reasons.  Such witnesses are called either for impeachment, corroboration, or for adducing substantive proof[viii].

Normally, a party cannot call a witness entirely upon his/her decision.  Any request made by a party to summon a person as court witness, and to permit such witness to be examined by both parties is left to the discretion of a court to which such request is made[ix].  A trial court exercises such discretion in the interest of truth and justice, thus carefully preserving an attitude of impartiality while calling any witness who is able to shed light upon the issues before a court[x].

The decision of a trial court not to call a witness cannot be disturbed by a review.  It is only on the ground of abuse of process of the court that a review can be preferred from such decision.  Therefore, an attempt to assert error on a trial court’s refusal to grant a request made by a defendant to call a person as a court’s witness will not be successful unless hostility, unwillingness, bias, untruthfulness, or surprise, is proved on a court’s refusal[xi].  Since the authority given to a court to call a witness does not cast a duty upon a court, a refusal made by such court to call a witness will not constitute an abuse of its discretion.

Generally, a witness who is called upon as court witness can give their testimony either by revealing their address or by not revealing their address.  Witnesses are allowed to give their testimony without revealing their address in the following circumstances:

  • where a trial court discovers a defendant’s interest in a witnesses’ addresses; and
  • where a trial court feels that a witness and his/her family should be given security.

However, the testimony of an undisclosed witness will be excluded by a trial court if his/her name is not included on a witness list furnished to a third-party defendant and if a plaintiff fails to provide the names of witnesses in response to defense interrogatories.

[i] State v. Newell, 1998 Ohio App. LEXIS 4716 (Ohio Ct. App., Stark County Sept. 8, 1998).

[ii] Clay v. Cole, 2007 Ark. App. LEXIS 625 (Ark. Ct. App. Sept. 19, 2007).

[iii] Hill v. Commonwealth, 88 Va. 633 (Va. 1892).

[iv] United States v. Smith, 328 F.2d 848 (6th Cir. Tenn. 1964).

[v] Selph v. State, 22 Fla. 537 (Fla. 1886).

[vi] Payne v. State, 214 Tenn. 244 (Tenn. 1964).

[vii] Davis v. State, 756 So. 2d 205 (Fla. Dist. Ct. App. 4th Dist. 2000).

[viii] Pipkin v. Hamer, 501 So. 2d 1365 (Fla. Dist. Ct. App. 4th Dist. 1987).

[ix] Moulds v. State, 426 So. 2d 942 (Ala. Crim. App. 1982).

[x] McGill v. Commonwealth, 10 Va. App. 237 (Va. Ct. App. 1990).

[xi] Carver v. Commonwealth, 634 S.W.2d 418 (Ky. 1982).

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