IF THE STATE DOESN’T LIST A WITNESS ON THE COMPLAINT DO THEY GET TO TESTIFY?
It depends, but in general No. If a witness isn't listed on the complaint and the defendant did not know they would be called to testify then the Court will generally not allow the witness to testify. The defendant has the right to know the identity of any witness the prosecution intends to call to testify at trial. This is generally known as the right to disclosure or discovery.
If the prosecution fails to disclose the identity of a witness, the defendant may file a motion to compel the prosecution to disclose the witness's identity. The court will then determine whether the witness's testimony is relevant and material to the defense, and whether the prosecution had a good faith basis for not disclosing the witness's identity earlier. If the court finds that the prosecution did not have a good faith basis for not disclosing the witness's identity and that the witness's testimony is relevant and material to the defense, the court may order the prosecution to disclose the witness's identity and may also impose other sanctions, such as precluding the prosecution from calling the witness to testify at trial.
This case addresses the following issue: STATE V. SNOW, 144 P.3D 729 (KAN. 2006)
If the State doesn’t endorse/list a witness on the complaint do they get to testify?
This case explores the issue of whether a witness can testify if he or she is not listed on the State’s complaint. In the present case, the court determined that the trial court had broad discretionary power in allowing the late listing of witnesses by prosecutors. Id. at 739.
The defendant, his brother, and their friend broke into various residential stores and stole items valued at over $60,800. Id. at 734. In addition, the trio stole a van valued at nearly $5,000 to assist in committing the thefts. Id. The friend was eventually arrested and gave up the defendant and his brother for immunity from prosecution. Id. Thereafter, the defendant was charged with six counts of burglary, seven counts of theft, two counts of felony criminal damage to property, and four counts of misdemeanor criminal damage to property. Id. at 734-35. While in jail, the defendant admitted to his bail bondsman and his fellow inmate that he committed the acts. Id. at 735. At trial, the State presented testimony from the friend, bail bondsman, and inmate and the defendant was convicted of all 19 counts. Id.
The defendant asserted that the district court mistakenly allowed the State to list the inmate as a witness on the eve of trial. Id. at 739. By allowing the State’s motion to list the inmate, the defendant claimed that he would either be denied the opportunity to investigate the inmate’s testimony or required to waive his right to a speedy trial. Id. Further, the defendant claimed that the district court erred because the State knew about the inmate’s statements months before trial and did not provide him with the opportunity to investigate. Id.
In order to address the listing of the inmate, the court quoted a Kansas statute which read, “The district court may allow the prosecutor to list the names of other witnesses, who later became known, after the complaint, information, or indictment has been filed.” Id. The court interpreted this statute as giving the district court broad discretionary power in allowing the late listing of witnesses. Id.
According to the court, the main question to be addressed was whether the listing of the witness prejudiced the defendant’s rights. Id. In order to address this, the court must consider whether the defendant was surprised by the witness and whether the testimony was critical. Id. With this said, the court stated that they would only reverse the district court if the defendant could show actual prejudice in his ability to defend against the charges. Id. While the inmate did advise the deputy of his conversation with the defendant’s months earlier, there was no indication that the State learned of these statements until the day they moved to list the inmate on the complaint. Id. In addition, the State provided the defendant’s attorney all the materials necessary to prepare for the inmate’s testimony. Id.
In sum, the court found that the defendant bore the burden of establishing actual prejudice to his ability to defend against his charges and he failed to carry this burden. Id. Therefore, the trial court did not abuse its discretion by allowing the State to list the inmate as a witness on the eve of trial. Id.