Question about courtroom procedures and witness tampering.

It is the responsibility of the attorney presenting witnesses to make sure they don't talk about the case. If witnesses are sequestered, often they'll be parked in different places. Alternatively, someone babysits them.

If sequestered witnesses talk, potentially you've got witness tampering, contempt of court, and a prejudicial mistrial. There are way too many permutations to figure out what's likely to happen.

Jim Clark-Dawe

ironpony said:

In my story I have a criminal court case where three witnesses are going to testify. I researched that they all wait out in the hall, or in a waiting room, and one testifies, while the others wait, then it's the next person's turn, while the other two wait, etc.

However, if all the witnesses are suppose to wait in the same room, or all in the hall, wouldn't they be able to talk to each other about the case, and thus, they can get ideas to add things to their testimony that could be considered tampering?

In my story I definitely see one witness trying to charm info out of another, and was wondering, what the court would do about that, if they are all suppose to wait in the same room?

Thanks for the information. I really appreciate it.

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Courthouses generally have more than one room. They're entire buildings, or parts thereof.

Lawyers rarely work alone.

It's complicated. Of course some witnesses are going to be talking with each other before the trial. Then again, there's a couple of county attorneys in New Hampshire that if we tried to get a jury that didn't know them, we'd have to go to another county.

But the main reason a defense attorney wants the witnesses sequestered is because we don't want the witnesses knowing exactly how we're going to approach things. Especially if there is something that the witnesses don't know we have.

People's memories are funny things. If you hear someone else tell what happened, and then are asked about it, you'll base a lot of your statement on what you just heard. It can cause you to say something that you couldn't have seen or heard, as you blur the memories together. But witnesses review their statements prior to trial, so there's some limit on how "pure" a witnesses memory on the stand is.

What you're concerned about is when someone is trying to get a witness to say something. That's witness tampering. But if you are family or friends, you're probably going to talk about the case. It's probably one of the major things that happened to you in life.

Jim Clark-Dawe

What is it you want to happen? Write that.

You might also go sit through a criminal trial, as an observer. They are generally open to the public, and it's about the best kind of research you can do, if you're going to write fiction about such things.

caw

The two cops you don't care about. They know the rules, and they won't be a problem. Depending upon how many cops are in court that day depends upon where they are hanging out. The victim would be with the victim advocate and probably an assistant prosecutor.

There's way too much trial strategy here or in other words, lots of variables. If I'm the prosecutor, I want the victim in the courtroom for my opening. Then the question is whether the victim is a strong witness. If the victim is a strong witness, I might want him or her first and keep him or her in the courtroom afterwards. On the other hand, maybe I can present a better story if I call the victim last. Maybe the defense doesn't care about whether the victim is in the courtroom for the trial. Defense might not be arguing that the kidnapping took place, but that the defendant didn't do it. In which case who cares whether the victim is in the courtroom.

What does the story need?

Jim Clark-Dawe

Either side can ask that some or all witnesses be sequestered. It really depends. I've done it sometimes, sometimes I haven't. I've let the victim stay in the courtroom sometimes, and sometimes I didn't.

Jim Clark-Dawe

Depends upon what you think is going to work better. I did always like the story of the defense attorney who let the victim stay in the courtroom. Victim (of a rape) testified last, and defense strategy was very simple.After the prosecutor had the victim testify for a day in gory detail, the defense attorney asks, "Are you sure this is the guy?" Victim wasn't sure, forensics were crap, five minute closing by the defense, and a not guilty. Defense attorney was confident that the victim couldn't identify the defendant.

Trial strategy is immensely complex as you try to figure out what is the best end game.

Jim Clark-Dawe

ironpony said:

In my story, two of the witnesses in the case are cops...

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Cops in the area I was used to hang out at the back of the court room playing poker. Cops don't falsify testimonies for 99% of cases, which is why when they do it makes the news. Usually they would be available for several cases during the day but, in the case of a major trial, might be detailed to the specific court case.

Your other witness might be sitting with a counselor to help them through the trauma and could have family members with them for support. It's these folks who would often shape the witness statement.

Jeff

Remember that it's almost always up to the sitting judge whether or not potential witnesses will be permitted to remain and hear any testimony offered by other witnesses. If either side (prosecution/defense) requests a rule on witnesses the judge will almost always grant the motion--all potential witnesses will be excluded (but required to standby/be accessible) until called.

ironpony said:

Who gets to decide when the victim if the victim is going to testify first or last? Are you saying it's up to the defense attorney to have her testify last, and not the prosecutor? Wouldn't the victim be the prosecutor's witness, and therefore, the prosecutor can decide when to bring her out?

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Both prosecution and defense present a list of witnesses, and each gets to call those witnesses in whatever order they please. The prosecution's case is presented first, so the defense gets to see how the case is presented, and has the chance to alter the preferred order of defense presentation accordingly, if desired. It's very likely that the victim will be a witness for the prosecution, of course, but not entirely a certainty. The victim may not be called as a witness at all. And both prosecution and defense have the right to recall witnesses as matters proceed.

caw

Victims frequently don't testify in domestic violence cases. It is possible, although unusual, to put on a kidnapping case without the victim.

Everything an attorney does in a trial is intended to help his or her client win the case.

If it's a high profile case, and the victim doesn't want to testify, the case will probably plea. Prosecutors are great at spinning a plea into looking like a victory. Lacking a victim doesn't kill the case, but it makes it a lot harder. Basically the prosecutor says he agreed to a plea to avoid the victim suffering again.

Jim Clark-Dawe

Your scenario becomes fun and incredibly complex.

Had a woman I was representing on welfare fraud for living with her husband. Husband is up in a different court for domestic violence on her during the period when supposedly she wasn't living with her husband. Prosecutor wanted my client to testify. I refused using 5th Amendment argument. It was ugly. Several trips in front of the judge, threats for me to be arrested as well as my client, just very, very ugly. Ended up the husband swung at one of the cops and the prosecutor dropped the domestic violence, and sent the husband to jail on an assault on a law officer.

Worked for me.

All sorts of things in play in this type of situation, especially if the media is involved. Prosecutor has to face the attacks for victimizing the victim. Question is whether the cost is worth the benefit.

Jim Clark-Dawe

ironpony said:

Okay thanks. If the victim is not called though, could that run the risk of losing?

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Of course it could. There's always the risk of losing a case, no matter what you do. You could equally lose the case even if the victim is called.

caw