Dealing with reluctant witnesses

Dealing with reluctant witnesses

It is not uncommon for a witness to be reluctant to testify for the defense. Some witnesses simply do not want to get involved. Others fear that the time taken will be ill-spent. Others fear intense cross-examination. Still others may have prejudged the case based on pretrial publicity or their own personal feelings about the defendant or the situation. It is important to remember that there is no legal obligation to speak to the defense. In fact, the prosecuting attorney or members of law enforcement may have instructed certain witnesses not to speak to anyone including defense attorneys or their representatives.

A defense attorney cannot compel a reluctant witness to speak with him or her. Sometimes a personal approach by the defendant will be effective. However, if the defendant's social skills are not well-developed, an approach by the defendant may not be productive. If a witness is willing to talk, counsel should start off by allowing the witness to express his or her feelings of resistance as fully as possible, and not even begin to argue until it appears that the witness has fully expressed those feelings. Once that is done, counsel should acknowledge that those feelings exist, and that they are real for the witness. He or she should then express the other point of view, mentioning the importance that all evidence that may help the jury be brought before the jury, and that counsel's job includes a duty to speak even with reluctant witnesses.