Use Witness Lists and the Hearsay Rule Together
Here’s a simple tactical maneuver you can use to your advantage, if you’re heading for a full-blown child custody trial. Before the trial begins, ask the court to require each side to disclose all of the names of their witnesses in advance. Some courts automatically require parents to exchange witness lists several days or weeks prior to trial, and to file those lists with the court as well. Other family courts are less formal than the civil and criminal courts and do not require such lists to be written, exchanged or filed.
Still, a close look at the court rules in most states reveals that ALL parties to a trial are entitled to such information prior to trial. To be sure, you or your lawyer should issue interrogatories (questions) to be answered by your adversary while the case is still pending…and one of those questions should state: “Identify all of the expert and non-expert witnesses who intend to call at trial.”
If a person thereafter attempts to call a witness who has not be previously disclosed on their witness list or in their answers to interrogatories, you can object to the “surprise witness” and ask the judge to exclude him and preclude him from testifying. An unannounced witness produced at the last moment is considered prejudicial because you have been robbed of the necessary time to prepare for this witness.
THEN, think about using the hearsay rule to shut down any attempt to sneak the witness’ testimony in through other parties. The hearsay rule holds that no statements that were made out of court can be referred to by anybody in the courtroom. Thus, if a person on the witness stand says, “My mother told me that….” the other party can object on the basis of inadmissible hearsay. What the mother said out of court is not permitted because mother is not available in court to be cross-examined and the truth of the statement made by her cannot otherwise be tested.
If a party is prevented from calling an undisclosed witness, he or she may attempt to testify about what that witness said out of court. He may also try to strategically slip in that witness’ testimony through other witnesses or through documents written or signed by the witness. But all of these techniques are generally hearsay–they cannot be admitted into evidence. If you apply the hearsay rule by making timely objections, you’ll not only be able to prevent undisclosed witnesses from testifying, but you’ll be able to block totally any reference to what they said, what they wrote, and what they want to say with respect to the proceedings.