Witness order: The lineup matters
One rarely discussed trial advocacy topic is the issue of witness order. This is especially important for lawyers who must meet a burden of proof.
It is a key element of persuasively marshaling proof and a skill that is more important than its well-known trial strategy cousins such as cross-examination or argument.
What are some of the considerations when deciding which order to call your witnesses?
1. Serial position effect: People are more likely to remember the first and most recent things. (E.g., If shopping for a wedding dress, you’re more likely to remember the first and last you tried on and forget the ones in the middle). That phenomenon impacts our witness order. Generally, we want to begin and end with a witness who is strong and in whom we have confidence. I often started with a solid police witness who could describe the case in broad terms and end with a powerful emotional or persuasive witness (officer who took the defendant’s confession, undercover agent, solid witness with key information about motive, victim, etc).
2. Storytelling witnesses: It’s important to establish the evidentiary framework for a case early, so the jury can see how everything fits together as the trial progresses. Depending on your theme, considerations such as chronology or subject matter should control here. Placing a witness who gives us intent or motive after the jury has heard the basic facts of the case is powerful.
3. “Necessary” witnesses: These witnesses are necessary for important functions such as authenticating evidence, establishing evidentiary foundations, or satisfying an uncontroversial element of proof. Generally, this testimony is fairly dry and unexciting but also carries low risk. I generally put them (depending on my exhibit list and exhibit order) in the middle and sandwich them around a riskier witness such as a cooperating defendant. For example, if I am prosecuting a case involving a felon who possessed a firearm, I have to prove that the gun involved affected interstate commerce. The ATF expert witness who can establish that is a good example of a necessary witness. (Practice note: Try to get a stipulation to uncontroversial facts. The judge and jury will appreciate it).
4. “Problem” witnesses. Those witnesses about whom you are less confident, have baggage, or will be less impactful go in the middle (Remember the serial position effect). E.g., Cooperating co-conspirator with bad criminal history).
5. Corroborating witnesses. These are underrated powerful witnesses that can corroborate aspects of a problem witness’s testimony. Sandwich them around the problem witness.
6. Variety witnesses. Follow an expert witness with an eyewitness and vice versa. Follow a long witness with a short one. The variety holds the jury’s attention better.
Troubleshooting issues: Availability, Judicial interference, Recovery from unexpected setback, Timing (end of day/beginning of day). These factors can mess with your plans. Roll with the punches and adjust as necessary. We can talk about this on a different day.
Baseball managers carefully craft batting lineups to create a powerful offensive dynamic, placing different kinds of hitters in different key spots in the batting order. #baseballandforensics?
We should do the same.
