I'm not a lawyer, and this is a hypothetical situation that I thought about while watching a trial.

If a prosecutor issues a subpoena for someone to testify at a trial, it's my understanding that the prosecutor needs to tell the defense about it by providing them the list of possible witnesses.

If so, the defense generally has the ability to speak to each of the witnesses, correct? What if a witness refuses to speak to the defense lawyers? For example, if they witnessed a crime and dislike the defendant because of it, so they don't want to speak to his lawyers. Or, what if a defendant is (stupidly) representing himself and the witness doesn't want to speak to the defendant?

I believe the subpoena requires the witness to testify at trial, but does it also require them to speak to the lawyers if the lawyers reach out to them to get their story prior to the trial? Or maybe is the prosecution required to provide the defense team the information that the witness will testify to in the trial anyway, so this is irrelevant? Can this come up in pre-trial hearings, and can a judge require information to be shared prior to trial if deemed appropriate?

I'm also assuming that the information has to be shared in some way, but maybe that's incorrect as well.

1 Answer 1


the defense generally has the ability to speak to each of the witnesses, correct?


The defense is only entitled to see what evidence the witnesses have provided so far, and what they are intending to give at the trial. The prosecutor must pass that info to the defense. This is called discovery (or disclosure).

  • The defence does generally have the ability to speak to witnesses (“there is no property in a witness”). They just don’t have the power to compel the witness to respond.
    – sjy
    Commented Jul 11, 2023 at 11:45
  • @sjy Quite obviously the OP did not mean literal "ability" (i.e. being able to communicate verbally). They meant the entitlement to. Which you seem to agree that the defense does not have.
    – Greendrake
    Commented Jul 11, 2023 at 13:04
  • I didn’t think it was obvious. Disputes have arisen quite frequently over the years about attempts by one party to confer with their opponent’s witnesses, hence the need for the courts to establish the principle that there is no property in a witness.
    – sjy
    Commented Jul 11, 2023 at 14:01

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