# In court, can the defense call his witnesses first, before the prosecution?



## ironpony (Aug 25, 2018)

MY scenario is a preliminary hearing, where they prosecutor takes his witnesses and evidence to court, to see if he has enough evidence to go to trial

The defense will try to debunk and surpress the witnesses and evidence, and bring his own witnesses. However, is there any circumstance in which the defense can call his witnesses first before the prosecution?

Basically for my story, I want the defense to call one of his witnesses first.  However, what if the defense delayed a prosecution from getting to court on time?  If the witness is late, will the judge allow the prosecution to call his witnesses?

Or does the prosecution witnesses go first, no matter how later they are?  Does anyone know?


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## Sam (Aug 25, 2018)

Yes, in extreme circumstances where calling of the first witness would otherwise disrupt the flow of the trial.

For example, the defence calling the prosecutor as its first witness.


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## ironpony (Aug 25, 2018)

Oh ok thanks.  This is a preliminary hearing though.  So would a witness being late and not have shown yet, count as an extreme circumstance though?


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## Ralph Rotten (Aug 25, 2018)

Is this trial in the US?
What you describe is a grand jury, and usually those are either secret or no defense is present.  A grand Jury is essentially the prosecutor's office showing what evidence they have and letting the jury decide if they have enough to proceed with a trial.


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## ironpony (Aug 25, 2018)

But there are some preliminary hearings still done in the US, isn't there?  The OJ Simpson case had a preliminary hearing, or at least it was called a preliminary hearing, or so it is, in this footage:

https://www.youtube.com/watch?v=bkrxarLhX7A&t=4s

Basically for my story, I don't want the case to go to trial cause that will take too long, for the story.  I want the defense to get the case dismissed before the trial begins without even having to wait for it.  Wouldn't the defense attempt to do this in a preliminary hearing, if they had the chance?


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## Dormouse (Aug 25, 2018)

https://criminal.findlaw.com/criminal-procedure/preliminary-hearing.html

Yes some States have preliminary hearings for some cases, to determine if there is probable cause. The prosecution presents it’s evidence against the accused, including calling witnesses. The defence will cross examine the witnesses and try call into question the evidence and get the charges dismissed. The defence do not call witnesses or presents evidence of the innocence of the defendant.

If the defence did that and the judge said there was probable cause then the prosecution will know the defence strategy and act accordingly.


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## ironpony (Aug 25, 2018)

Okay thanks.  Well in my story, the prosecution is choosing not to call one of the witnesses, thinking they will be unreliable, but the defense sees a contradiction in witness testimony and then calls the witness himself to prove that there is a huge witness contradiction in the case, thereby getting the case dismissed by the judge at the preliminary hearing, if that works.

If that works, then it's the defense that usually calls for a preliminary hearing, and not the prosecution, is that right?

Now unlike a trial, in preliminary hearings, surprise witnesses are allowed without having to disclose them long ahead of time, is that right?


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## Dormouse (Aug 25, 2018)

In some States it is automatic to hold preliminary hearings for all felonies. Sometimes a judge might call one or the defence after seeing the case from the prosecution.

As far as I can tell (I am not American or a lawyer. I am just googling) the prosecution can only not put on a witness if they are not going to call them in the trail. All witnesses must be disclosed to the defence as well as the evidence following court procedure as normal. Likewise the defence must give the prosecution a list of witnesses it intends to call.


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## ironpony (Aug 25, 2018)

Okay thanks.  What if a new witness goes to the defense to be a witness the same day as the preliminary hearing?  can the defense still call them?


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## Jack of all trades (Aug 25, 2018)

ironpony said:


> MY scenario is a preliminary hearing, where they prosecutor takes his witnesses and evidence to court, to see if he has enough evidence to go to trial
> 
> The defense will try to debunk and surpress the witnesses and evidence, and bring his own witnesses. However, is there any circumstance in which the defense can call his witnesses first before the prosecution?
> 
> ...



According to the police officer I talked to about preliminary hearings two years ago, they last all of about 15 minutes. The charge is specified, the prosecutor and defense attorney are recorded, the defendant pleads guilty or innocent, if pleading innocent, a trial date and bail amount is set. That's all folks. No witnesses. 

Try asking police in your area.


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## ironpony (Aug 25, 2018)

Oh okay in my research the plea happens at a completely different hearing called a plea hearing.  Then if the plea is not guilty, the grand jury hearing comes after to determine if there is probable cause, and then the preliminary hearing comes after that to call and cross examine witnesses to prepare for trial, and the defense can challenge it.  At least that is what I read, but I am trying to find the article, I read that in before.

What about the OJ Simpson preliminary hearing example I posted?  There was no plea in that one, and witnesses were called, which the defense cross examined.  That's where I got most of my research from before, so doesn't that sound about right, since that is how they did it in the OJ preliminary hearing?


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## Jack of all trades (Aug 26, 2018)

ironpony said:


> Oh okay in my research the plea happens at a completely different hearing called a plea hearing.  Then if the plea is not guilty, the grand jury hearing comes after to determine if there is probable cause, and then the preliminary hearing comes after that to call and cross examine witnesses to prepare for trial, and the defense can challenge it.  At least that is what I read, but I am trying to find the article, I read that in before.
> 
> What about the OJ Simpson preliminary hearing example I posted?  There was no plea in that one, and witnesses were called, which the defense cross examined.  That's where I got most of my research from before, so doesn't that sound about right, since that is how they did it in the OJ preliminary hearing?



Hmmm. Maybe it's the plea hearing I described.

What I know for sure is I had to rewrite based on his info. I had a prelim last three or four days, and the officer was very clear that prelims last only about 15 minutes.

My advice is to either 1) write it the way you want and forget about accuracy, or 2) talk to attorneys or police in the area where the story is taking place and get actual, hopefully reliable, info.


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## Ralph Rotten (Aug 26, 2018)

Preliminary hearings are for setting up details of the trial, almost like the discovery phase where evidence is considered for inclusion. They may decide which professionals may be allowed to testify, or what strategy the defense is going to use.  Think of preliminary hearings as housekeeping before the main event.

You should really take an intro to court procedure, or intro to LE at your local college.


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## ironpony (Aug 26, 2018)

Okay thanks.  I've read some court websites on how it works and asked some online attorneys, and was going by what they said, but I was wondering, on how much I can get away with making things up?

What if I just made up the fact that the case skips to the preliminary hearing, and doesn't really have a grand jury hearing?  The prosecution presents probable cause to the judge, but the defense is there, and points out the holes, to get the case dismissed.  And this would be like a couple of weeks after the arrest maybe.  Would that be making up too much do you think?


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## RobbieO (Sep 24, 2018)

Any contradiction by witnesses should be documented in a deposition.  Your defense attorney can question the witness about their testimony at the deposition, even have them read their documented responses aloud.  Of course they would lay the bait by asking the question to the witness first and garnering a response before correcting that witness with their own previous testimony.

"Do you know my client, John?"
"No; I've never seen him."
"I give you the record of your deposition, page two, and ask you turn your attention to line 26, can you read line 26 aloud please?"
*reads aloud* "State's Attorney: Do you know John Smith?"
"And your response on the following line of that same page, can you read that aloud please?"
"I have known John Smith for about a year and a half now; we started working at WalMart together on the same day."
*attorney proceeds to savagely lampoon the witness on the stand*


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## RobbieO (Sep 24, 2018)

Also it depends on when in the trial this is happening.   The state will make its case and then rest its case.  Then the defense is given the floor to make their case.  The defense plans to call a star witness who will defend the accused, perhaps a specialist or expert witness of some sort.  The prosecution is not going to call that person to help make their case.  So the defense will call the witness who has not yet been called, known as direct examination.  The prosecution will then have a chance to question the witness before the witness is excused, known as cross-examination.  If the defense feels the prosecution got something wrong, they can re-direct examine the witness, just called "re-direct" for short, at which time the prosecution is afforded the opportunity to "re-cross" the witness.  So at the start of the trial, the answer to your question is no.  After the prosecution rests its case, the answer to your question is yes.


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## ironpony (Sep 24, 2018)

Okay thanks.  Well for my story, I wanted the defense to call a witness first in order to discredit one of the prosecution's witnesses.  However, it will be more difficult to do if the prosecution witness gets to testify first.  What if I wrote it so the defense causes a delay, causing the prosecution witness to be late, would the judge but the defense witness up first, if the prosecution witness was late?


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