Lawyers make a lot of mistakes. We ask too many questions. We talk too much during jury selection. We don't listen to jurors or our witnesses enough. But, there is one issue that draws a fine line between a mistake and a guilty verdict.
Should I call this witness?
It's the question every lawyer should ask before deciding to put a witness on the stand. Just because a witness's name will come up during the trial doesn't mean you should call him or her. There have been many trials where I've called one witness too many. It always burns you.
Can the witness help you?
This may seem obvious, but so many lawyers miss this issue. Why put a witness on the stand who went to the crime scene after the investigation was complete. If there are two police officers who see the same version of events, do we need to call both?
Every person views a situation differently. We stand in different vantage points and all bring our own interests. If I went to a wedding, I would not be able to tell you what the bridesmaids dresses look like or what kind of flowers were on the table. But I would be able to tell you who got married. Maybe.
Knowing this, why put on five witnesses who are going to contradict each other over minor details. Will two be enough? Three? Maybe even one?
Can the witness hurt you?
This is different than the help question. A witness can provide fantastic information, but still not be a good witness at trial.
The witness may be able to identify the defendant as the murderer, but will provide a completely different set of facts concerning how the shooting happened. Is that a good idea if it is contradicted by all your other evidence?
What if you have a gun recovered and the police never tested for DNA. Is it a good idea to put a forensic scientist on the stand to talk about how great DNA is when the police didn't perform a basic investigative step?
A cooperating witness? No matter how many times I tell a cooperating witness to just be honest about all his bad acts, something always surprises me. The defendant was usually friends with the cooperator. Therefore, the defendant knows everything bad the cooperator has ever done. It will come up during cross-examination and surprise everyone. Sometimes, the unknown factor is not worth the risk.
Is there some other way to get the evidence in?
If the witness can both help and hurt, we must decide if there is some other admissible way to present the evidence to the jury. Did another witness see what he saw? Is there a hearsay exception? Is there a document as a business record we could use instead?
If the witness needs to be called despite the negatives, you might have to deal with him as an unlikeable witness.
In a trial, less is always more. A clear, consistent, and straightforward case will always prevail over a prolonged case where every possible meaningless fact is addressed.
At least that's my theory. I'll let you know how it works out.