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Without considering why a party in a criminal trial might want to do so, are there any obstacles to subpoenaing and examining any of the following people as witnesses during the trial? ETA: Not as eye-witnesses to the alleged crime, but rather as witnesses to the criminal process.

  1. A judge who has acted in some capacity in the case on trial, but who is not presiding. For example: (A) the judge who arraigned the defendant. (B) a judge who recused himself from the case.

  2. A lawyer working in the prosecutor's office that is prosecuting the defendant.

If context is necessary, one reason I can imagine a defense might want to examine these people before the jury is to call into question the motives and methods driving the prosecution of the defendant.

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4 Answers 4

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The answer to this question will be almost entirely informed by the why that you've asked us not to consider.

If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3.

If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence.

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    Testimony regarding an uncontested issue under Rule 3.7 wouldn't be that rare. Most often, this would be regarding authentication of evidence. Outside the presence of a jury, there might be testimony regarding issues such as testimony concerning whether evidence was disclosed prior to trial, or what a witness had to be taken out of order due to medical problems or traffic delays, or whether a brief was prepared using ChatGPT.
    – ohwilleke
    Commented Jul 28, 2023 at 22:47
  • Unfortunately there is no recourse for a judge who won't recuse self; so I could see calling judge to stand actually being done in that case.
    – Joshua
    Commented Jul 30, 2023 at 21:52
  • @Joshua In what sense is there no recourse for a judge who won't recuse?
    – bdb484
    Commented Jul 31, 2023 at 16:14
  • If the judge says "no I won't" there's not a whole lot you can do until appeal after the trial. Calling the sitting judge as a witness is an excellent way of proving he should have though.
    – Joshua
    Commented Jul 31, 2023 at 16:19
  • Is even that right, though? I know that in my home state, you can file a separate action to disqualify a judge who won't recuse, and the case doesn't move forward until the disqualification action is decided.
    – bdb484
    Commented Jul 31, 2023 at 17:42
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In a similar vein to bdb848's answer...

Witnesses are called to either offer testimony concerning facts in issue relating to the indictment, or to give evidence on the defendant's good / bad character.

Enquiries in to the "criminal process" are dealt with independently and away from the jury.

For example:

Complaints against a judge are investigated by the Judicial Conduct Investigations Office, by virtue of the Judicial Discipline (Prescribed Procedures) Regulations 2014.

Allegations of prosecutoral failings or abuse of process are usually dealt with in a voir dire following a defence application under section 78 Police and Criminal Evidence Act 1984 or via the court's inherent powers.

There is also the possibility of a "Misconduct in Public Office" investigation if the alleged failings and / or abuse of process are severe enough.

So no: they can't be called unless they are a bone fide witness.

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defense might want to examine these people before the jury is to call into question the motives and methods driving the prosecution of the defendant.

A prosecutor who is also already a witness for their case can be compelled to testify about the conduct of their prosecution.

In Greendrake v McConnochie I was on the witness stand in the role of a witness for the case I was prosecuting self-represented (private prosecution). However, the only questions the defence wanted to ask were pertaining to my roles of an investigator and prosecutor in the case, not a witness as to the elements of the charges in question.

I objected to those questions on the basis that I was only giving evidence in the role of a witness for the prosecution. To no avail: the judge overruled my objections and I had to give the answers.

In theory, I could request an adjournment and appeal the decision to overrule my objection, but I did not as I had nothing to hide anyway. But the precedent now remains.

However, to be compelled to testify like that, a prosecutor (or a judge) must already be on the witness stand — on their own volition. There is no way to compel them to be there in the first place.

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In the Scopes trial, the defence called William Jennings Bryan, who was a counsel for the prosecution, as an expert witness.

Stewart objected for the prosecution, demanding to know the legal purpose of Darrow's questioning. Bryan, gauging the effect the session was having, snapped that its purpose was "to cast ridicule on everybody who believes in the Bible". Darrow, with equal vehemence, retorted "We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States."

So I'd say yes for a prosecutor.

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