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Excusal Remorse: I Want That Witness Back!

witness_78724356Trial attorneys sometimes get excusal remorse, i.e., they excuse a witness and then want to recall that witness back to the stand. Anticipate this reaction and take proaction.

Here’s the general rule in California: When a witness has concluded his or her testimony and been excused by the court, that witness may not be recalled as a witness by either party without leave of court. Evid C §778. This rule, which is intended to avoid undue delay and prevent witness harassment, is a pretty big barrier to a recall.

Courts do have discretion to allow counsel to recall a witness if later witnesses raise new facts on which further testimony is needed from a previously excused witness (Evid C §§774, 778), but don’t count on them using it.

As with most things, it’s much better if you’re proactive: Either ask the witness all questions the first time, or ask the court to excuse the witness subject to being recalled, e,g., because you want the witness to be available for rebuttal or you want to introduce deposition statements inconsistent with the witness’s trial testimony. See Evid C §770(b).

If you’re successful in getting the witness excused subject to being recalled, you can minimize the witness’s inconvenience by asking the court to put the witness on telephone standby instead of making him or her wait in the courthouse.

But be prepared for the possibility that the court won’t permit the witness to be recalled and take the following precautions:

  • On direct examination of your witness, be sure to cover all areas you need to prove, in the event the court doesn’t permit recall.
  • On cross-examination of the opponent’s witness, inquire into areas relevant to your case even if they’re outside the scope of direct examination. Meet objections to your questions with a request to ask questions outside the scope of the previous examination under Evid C §772(c) or to recall the witness as your own under Evid C §776.

For everything you need to know about recalling or excluding witnesses, turn to CEB’s essential practice guide for all litigators, Effective Introduction of Evidence in California.

Related CEB blog posts:

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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  1. […] Excusal Remorse: I Want That Witness Back! […]

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