It happens to every criminal lawyer both prosecutor and defense attorney. What to you do when your witness is missing ? Florida trial lawyer Elliott Wilcox, who writes the publication Trial Theater , wrote an article on his weekly newsletter on tips when your witness flies the coop or is late to court. I highly recommend signing up for his free report Here’s his tips plus my take.
1. Avoid the situation. Use your support staff as your witness coordinator. The District Attorney’s Office in Nashville , Tn.uses victim witness coordinators to coordinate witnesses. Use your legal assistant or paralegal to do the same thing.Written directions are helpful to give the witness as well as telling them to be present 30 minute early. I would also suggest your witness coordinator sit at counsel table during the trial.Be mindful to instruct them regarding the sequestration rule .
2.Have a filler witness ready to go.I don’t know about this tip. I want to keep my witnesses short so some D.A doesn’t hammer an unsuspecting witness.
3.Take the heat. I like this one best.You have the law license.You take responsibility. A judge I clerked for gave me this advice and I still use it today.Most judges will give an attorney a little room if a witness is not there on time.
4.Ask for a break. If your staff has done their job they will pass a note that the alibi witness just got arrested. Ask for a break.Collect your thoughts and blow up the witnesses cell phone .
5. Stretch the last witness. Again ,your staff warned you that the witness is not there yet.Stall. You can ask some softball questions to the witness to give you a little more time.
Thanks to Mr. Wilcox for these tips. I have enjoyed reading his trial insights and will share them here from time to time. You can visit his web site at www.trialtheater.com
Happy Trials !