WHAT HAPPENS IF THE STATE WANTS TO HAVE A SURPRISE WITNESS TESTIFY AT TRIAL?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Coleman, 253 Kan. 335 (1993).
This case answers the following questions:
If a witness comes forth and wants to testify at trial, but wasn’t on the witness list subject to the pretrial conference, can they still testify?
What factors will a court consider when a nondisclosed witness for the defense is called at trial?
The issue in this case includes whether the trial court erred by refusing to allow certain witnesses to testify solely for the reason that they were not listed on the pre-trial orders and, in addition, failed to consider the factors set forth in State v. Bright, 229 Kan. 185 (1981). 253 Kan. at 346. It is within the trial court’s discretion, subject to exclusionary rules, whether to admit or to exclude evidence. Id. at 344. The defense counsel has no statutory requirement to disclose the names of defense witnesses prior to trial, with one exception for alibi witnesses. Id. at 347. However, the legislature authorizes pretrial conferences in criminal cases and this Court encourages their use. Id. If pretrial conferences are held “both parties are bound by the agreements made at the conference and included by the judge in the order entered at the conclusion of the conference.” Id.
In the current case, the defendant argues that his right to present witnesses on his own behalf under the Sixth Amendment of the United States Constitution and his right to due process were violated through the refusal by the trial court to allow three unendorsed defense witnesses to testify. Id. at 343. Prior to the trial, the defense counsel signed a pretrial conference discovery document, which included a statement that the defense would provide an “exhibit and/or witness list … seven  days before trial.” Id. at 346-47. The first unendorsed witness came forth the morning of the third day of trial and was to testify that she was an eyewitness to the shooting. Id. at 343. However, the trial court denied her the opportunity to testify and noted that the pretrial order was binding because the judge believed that this was exactly the kind of situation that the pretrial order was intended to prevent. Id. The trial court judge was unable to find evidence on the record to indicate that the witness was present at the shooting and no proffer was provided to indicate the substance of her testimony. Id. at 344. This Court noted that a “party may not assert error based upon erroneous exclusion of evidence in the absence of a proffer of that proposed evidence” and concluded that because there was no proffer of this witness’ testimony, the trial court did not err in excluding her testimony. Id.
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The other two unendorsed witnesses also only came forth after the trial had begun. Id. at 345. This Court noted that, unlike the previous witness, both of the witnesses here had proffered testimony and, therefore, the question turns to if the trial court abused its discretion in excluding their testimony. Id. at 346. If the agreement is of the record, the pretrial order should be enforced, however, if the pretrial order could result in manifest injustice, then the trial court has authority to modify the order. Id. The trial court should consider other alternatives before resulting to the severe sanction of refusing to allow defense witnesses to testify, which should be viewed as a last resort. Id. at 351. In order to make a determination whether a trial court’s decision was sound on the issue of excluding evidence that was not noted on the pretrial agreement a court must consider the factors set out in Bright. Id. at 348. The court in Bright held that:
“If a defendant has been required by pretrial discovery order to disclose defense witnesses prior to trial and fails to do so, and attempts to call a witness or witness not disclosed, then in ruling on prosecution objections the trial court should:
Inquire why the witness or witnesses were not disclosed;
determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent;
determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue;
determine the extent of prejudice to the State, and the importance of the witness to the defense;
determine any other relevant facts;
grant the State a recess if prejudice can be avoided or reduced by such action; and
avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed as a last resort.” 229 Kan. at 194.
Further, the Bright court noted that trial courts consistently permit the late endorsement of State witnesses, and this Court generally upholds those decisions. Id. at 192. This Court also previously held that late endorsements are normally permitted if the opposing parties are given time to interview the witnesses and cross-check their testimony. 253 Kan. at 349.
In the present case, this Court noted that the trial court made the decision to exclude the witnesses based on the quality of the evidence rather than the admissibility of the evidence, and thus, overstepped into the province of the jury by engaging in the role of factfinding and determination of witness’ credibility. Id. 348. The Court thus concluded that the trial court erred by failing to apply the factors set out in Bright and that after application of those factors to the facts of this case, the proffered testimony from both of the witnesses should have been included at trial. Id. at 351. The Court considered specifically the following facts: both witnesses failed to come forth before the trial began – one due to fear, the importance of the substance of the purposed witness testimony, and whether the nondisclosure was willful. Id. at 350-51. The first witness was to testify that he was an eyewitness to the shooting and that he saw someone other than the defendant shoot the victim. Id. at 351. This Court determined that this testimony was crucial to the defense because it went to the ultimate question of who shot the decedent. Id. The other witness was to testify that she saw the decedent and the other suspect of the shooting together with a gun, prior to the fatal shooting. Id. This Court then reasoned that due to the substance of the testimony that would have been provided, the exclusion of both of the witnesses did not result in harmless error. Id. Further, when addressing whether or not the nondisclosure was willful, this Court turned to the fact that the defense counsel suggested a recess to allow the State to question the witnesses and thus would have eliminated the surprise element. Id. Finally, the Court noted that the trial court failed to consider any other options, and did not attempt to avoid the severe sanction of refusing to allow the defense witnesses to testify, which should have been seen as a last resort. Id. This Court then concluded that the trial court erred by failing to address the rules set forth in Bright and reversed the conviction of the defendant and remanded to the trial court for a new trial. Id.