484 U. S. 400
January 25, 1988
In a trial for attempted murder, the defense counsel sprung a surprise witness on the court at the last minute. The judge, who was highly annoyed by this, heard the witness give some testimony away from the jury. Not finding the witness credible, the judge precluded him from testifying to the jury. When the defendant was convicted, he argued that the exclusion of the witness violated his Sixth Amendment rights.
In a 5-3 vote, the Court held that the judge was within his discretion to exclude the witness. Although the Sixth Amendment generally granted a defendant the right to have his witnesses heard, the right could be circumscribed if abused. In this case, bringing in an unreliable witness at the 11th hour crossed the boundary. Justice Stevens said that courts must be able to take harsh measures to preserve their integrity, and thus was unmoved by claims that a lesser remedy such as a continuance should have been imposed instead. Finally, Stevens rejected the claim that the defendant was being punished for the lawyer’s mistake, noting that clients suffer all the time due to ill-conceived trial tactics.
Brennan, joined by Marshall and Blackmun, dissented. As a preliminary matter, he noted that the the case’s justiciability was iffy, but wisely brushed these worries aside (I badly wish this would happen more often). He took great offense at the notion of a judge determining the credibility of a witness. Furthermore, since the outcome of the trial hung in balance, Brennan felt exclusion was a horrendously unfair remedy, disproportionate to the offense. He also stressed at length that there was no proof the defendant was behind the late disclosure of the witness; it was simply wrong to effectively punish the defendant when his lawyer was guilty of not merely poor tactics, but outright legal misconduct. Blackmun’s brief dissent noted that there could be rare cases where exclusion would be warranted.
This is a case where I’m genuinely torn. As I’ve said before, I’m very much in favor of as much evidence as possible coming in, and hate it when arbitrary rules keep important testimony out. On the other hand, the words of Justice Stevens about preserving a court’s integrity had an unexpected resonance. When a defense lawyer starts using amoral, juvenile, and hardback stalling tactics that make a mockery of the judicial system, one does start to want a truly effective remedy. Ultimately, I think I lean slightly to Brennan’s side, if only because there probably are other remedies out there to effectively deter surprise witness abuse.