Written by attorney Angelo Felice Campano

Witnesses are not always welcomed in the courtroom.

Witness are not always welcomed in the courtroom. By Angelo F. Campano

In court, witnesses can help support a person’s claims. Without a witness the case will boil down to the “he said she said" type case. When you have a witness, your chances of proving a point can increase; however, that increase depends on your witness backing up what you say. Ideally, the witness has personal independent knowledge of what happened, and does not have to be reminded of what happened. That is the ideal answer, but not always the most practical. So, sometimes parties want their witness inside the courtroom to watch and hear what is being said so that when the witness takes the stand the witness will almost repeat what was said earlier. Fortunately, there is California Evidence code §777 which says, in part, “…the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses."

The purpose of Evid Code §777 is to maintain fairness and veracity in the courtroom. This is done by keeping witnesses outside the courtroom until they called to testify. That way, the witness cannot be guided by what was said or heard, but instead by his/her own memory. In a case I defended, Evid Code §777 helped win the case.

In the case I defended, my client was accused of doing bad things. Of course, that was not true, I knew that it was untrue, and believed in my client from day one. When we went to court to fight the case the purported “victim" showed up with two witnesses. In criminal cases we do not have the luxury of depositions (testimony taken under oath before trial), so we had to rely on what we believed. But we also relied on Evidence Code §777, and the court agreed to keep the two witnesses outside the courtroom. That code proved pivotal because the “victim" took the stand and testified that my client did bad things. When I had the chance to cross-examine the “victim", I asked him if his witnesses outside were going to back him up on everything he says happened. The “victim" made it clear these witnesses were there when these alleged bad things happen. With that said we called in witness number one and this witness contradicted what the “victim" said happened. Then, we called in witness number two and that witness contradicted not only the “victim" but even the first witness. When done, the judge dismissed the case and politely suggested that the “victim" think twice about making these allegations again. Making an Evid Code 777 request and keeping the witnesses outside the courtroom until they are called into testify can help keep the trial fair and honest.

Additional resources provided by the author

California Evidence Code 777 Tel: 661-945-5300

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