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Can a prosecutor subpoena a witness and on the day of trial not put them on the stand?

Port Arthur, TX |

A witness was not called to testify because the prosecutor knew that the testimony would help the defense. Did he have the option not to call them or is this something that could be used in an appeal process?

Attorney Answers 4


The subpoena makes no difference. Either side can call any witness or not call any witness. I hope you are not trying to handle a criminal appeal without a lawyer.

This is not legal advice. You should always discuss the specifics of your issue in person with an attorney. Be aware that there are time limits on all claims that depend on the kind of claim, so do not delay in seeking an attorney.

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The prosecutor is not required to call any particular witness.

The prosecutor is required to provide the defense with information that the prosecutor has in his or her possession and that is mitigating or exculpatory (meaning would tend to make the crime look less bad or tend to show the defendant was not guilty).

This situation illustrates why people need to get criminal defense lawyers to represent them. The skill set criminal defense lawyers bring to the table includes knowing how to go about demanding mitigating and exculpatory information for the prosecutor and knowning how to use it in court.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.

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Absolutely. The prosecutor is in charge of how she chooses to present her case. The defense attorney is free to call that witness to testify.

Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers offers everyone a free consultation to discuss their case. Feel free to call her office at 214-365-9800 to make an appointment (phones are answered 24 hours) or visit her website at for more information about her services and recent victories.

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Yes, he had the option of not calling the witness. In the trial of a criminal case, as in a civil lawsuit trial, neither side is required to call any particular witness.

Like Mr. Arbuckle, I hope you are not planning to handle your own appeal of a criminal conviction. If you do, getting a reversal of your conviction will be just about impossible. If you have not already done so, you need to consult a criminal appellate law specialist.

Good luck.

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