In a Criminal Case Does the Defense Need to Present Witnesses?

Some people wonder whether it’s best for a criminal defense attorney to present witnesses in a trial. Now the criminal defense attorney doesn’t have to present any witnesses at all. A criminal defendant has no obligation to testify or to call witnesses or to present exhibits--documents or objects to show to the jury. The burden of presenting evidence is entirely on the prosecution. 

Asking whether a criminal defense attorney should call witnesses or present exhibits—in a sense, that’s putting the cart before the horse. The horse is, what is the defense’s theory of the case? What is the defense lawyer going to ask the jury to believe happened? What is the story told by the evidence, the story in which the defendant is not guilty?

That question has to be answered before the defense attorney can know what witnesses are going to present that evidence to the jury and what exhibits are going to show that to the jury. Maybe all of the evidence that shows the defendant innocent can be elicited from the state’s witnesses--the prosecution’s witnesses--when they testify. Maybe all of the exhibits can be presented through those same prosecution witnesses. 

In that case, when the prosecutor stands up at what the jurors think is the midway point of the trial and says, “Your honor, the prosecution rests,” the defense attorney can immediately stand up . . . immediately stand up . . . and say, “Your honor, the defense rests.” That’s a dramatic way to end a trial.