# Can the Defense Force the Police/DA Investigators to Testify? **URL:** \ **Category:** Factual Questions\ **Created:** [January 4, 2013, 4:34pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074 "2013-01-04T16:34:34Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [January 4, 2013, 4:34pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/1 "2013-01-04T16:34:34Z")
Suppose a guy is suspected of some crime and the police seize his computers and/or all his financial records and so on, and find no evidence of wrongdoing in any of it. But they build a case based on other evidence, e.g. witness testimony and so on and go to trial. Can the defense call the police and prosecution investigators who reviewed the hard-drive and financial records etc. to the stand, and make them describe the extent of their searching and how they would ordinarily expect to find evidence of wrongdoing in such cases but yet found nothing? I can’t think of why not, but I don’t recall hearing of this being done. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 4, 2013, 4:46pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/2 "2013-01-04T16:46:24Z")
Anybody can be compelled to testify via subpoena. People who are forced do not always make the best witnesses, though. The one exception is that the prosecutor can not call the defendant as a witness, due to the Fifth Amendment. The defendant can be cross-examined if he chooses to testify on his own behalf, though. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 4, 2013, 5:24pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/3 "2013-01-04T17:24:08Z")
I ran into a related issue back when I was working in prisons. I used to conduct disciplinary hearings and the law said that employees had to testify if the defendant (ie the prisoner) called tham as witnesses. But other prisoners and non-employees had the right to refuse to testify. Usually this was a pretty clear-cut distinction but I ran into a situation once where a prisoner wanted to call a witness who had a contract to provide services for the state but wasn’t actually a state employee. She didn’t want to testify and I ended up having to go all the way up to Albany to get a legal determination on whether or not she was required to testify. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 4, 2013, 5:27pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/4 "2013-01-04T17:27:19Z")
So, if an expert is callled to testify (i.e. computer forensic guy) can he be required to have the necessary evidence at hand, or could he show up and say “I don’t remember. I had a quick look at this, nothing stands out, I don’t remember.” I imagine lab notes, etc. can be subpoenaed as well. Technically, would this fall in the category of stuff the prosecution must make available to the defense before the trial under disclosure? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 4, 2013, 5:39pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/5 "2013-01-04T17:39:38Z")
> [@md2000](#): > > I imagine lab notes, etc. can be subpoenaed as well. Yes. > [@](#): > > Technically, would this fall in the category of stuff the prosecution must make available to the defense before the trial under disclosure? Yes. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 4, 2013, 5:53pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/6 "2013-01-04T17:53:52Z")
> [@md2000](#): > > So, if an expert is callled to testify (i.e. computer forensic guy) can he be required to have the necessary evidence at hand, or could he show up and say “I don’t remember. I had a quick look at this, nothing stands out, I don’t remember.” > > I imagine lab notes, etc. can be subpoenaed as well. > > Technically, would this fall in the category of stuff the prosecution must make available to the defense before the trial under disclosure? Yes, and the defense attorney can show it to the witness during his testimony and say (in so many words), “do you remember _now_?” The documents may not be admissible as evidence in and of themselves, though. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 4, 2013, 5:59pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/7 "2013-01-04T17:59:23Z")
So if the report says “I found nothing on the computer” would it be simpler / better for the prosecution to simply submit the report as an exhibit rather than call the expert? Once the prosecution did not call the guy, I assume they cannot change their mind after the defence starts their case; and better a report saying “nothing found” than a live expert that could hedge things on cross examination with “Well, it could have been erased and then extra data written in to hide the erasure” or otherwise introduce doubt. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 4, 2013, 6:02pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/8 "2013-01-04T18:02:34Z")
It would be better for them not to submit the expert’s findings in either form. Making it available to the defense doesn’t mean they have to enter it into evidence. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 4, 2013, 6:17pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/9 "2013-01-04T18:17:10Z")
Oops. I meant for the defence to submit it. The idea isthe defence would make the point “they found nothing on the computer” while making it too late for the prosecution to back up and add caveats to that opinion. ---
**Author:** ![Sevencl](https://avatars.discourse-cdn.com/v4/letter/s/d9b06d/32.png) [@Sevencl](https://boards.straightdope.com/u/Sevencl)\ **Post date:** [January 4, 2013, 6:21pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/10 "2013-01-04T18:21:52Z")
> [@friedo](#): > > Anybody can be compelled to testify via subpoena. People who are forced do not always make the best witnesses, though. > > The one exception is that the prosecutor can not call the defendant as a witness, due to the Fifth Amendment. The defendant can be cross-examined if he chooses to testify on his own behalf, though. Also spouses, no? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 4, 2013, 6:25pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/11 "2013-01-04T18:25:15Z")
The spouse cannot be compelled to testify about communication which arises out of the marital relationship, and cannot be compelled to take the stand at all in a criminal case, but he/she can be called as a witness. It’s the non-defendant spouse’s choice whether or not to testify. > [@](#): > > The idea isthe defence would make the point “they found nothing on the computer” while making it too late for the prosecution to back up and add caveats to that opinion. If the prosecution knows the defense is going to introduce the report, they’re going to introduce their evidence or witness to explain it away. The exhibits that will be presented at trial must be declared well in advance (notwithstanding the standard Hollywood courtroom plot point where the defendant presents an exhibit for the first time halfway through the trial). ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [January 4, 2013, 6:32pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/12 "2013-01-04T18:32:45Z")
> [@md2000](#): > > … Once the prosecution did not call the guy, i assume they cannot change their mind after the defence starts their case … AIUI, > [@](#): > > … Both sides of a controversy are obliged to declare in advance of trial what witnesses they plan to call, and what each witness is expected to testify to. When either a plaintiff (or prosecutor) or defendant brings direct evidence or testimony which was not anticipated, the other side may be granted a specific opportunity to rebut it. In rebuttal, the rebutting party may generally bring witnesses and evidence which were never declared before, so long as they serve to rebut the prior evidence. …[right][CITE](http://en.wikipedia.org/wiki/rebuttal)[/right] CMC xxxxx ---
**Author:** ![Seanette](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/seanette/32/9139_2.png) [@Seanette](https://boards.straightdope.com/u/Seanette)\ **Post date:** [January 5, 2013, 12:41pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/13 "2013-01-05T12:41:47Z")
> [@Fotheringay-Phipps](#): > > Suppose a guy is suspected of some crime and the police seize his computers and/or all his financial records and so on, and find no evidence of wrongdoing in any of it. But they build a case based on other evidence, e.g. witness testimony and so on and go to trial. > > Can the defense call the police and prosecution investigators who reviewed the hard-drive and financial records etc. to the stand, and make them describe the extent of their searching and how they would ordinarily expect to find evidence of wrongdoing in such cases but yet found nothing? > > I can’t think of why not, but I don’t recall hearing of this being done. ISTR in the Manson trial, the defense called prosecutor Vincent Bugliosi to the stand at some point (he’d also functioned as an investigator in the case). The judge allowed it, but Bugliosi himself was apparently willing to cooperate. No idea what would have happened if he’d balked. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 5, 2013, 4:25pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/14 "2013-01-05T16:25:43Z")
Other than the attorney/client privilege, the only thing that keeps counsel from calling each other as witnesses is professional courtesy. It’s Just Not Done (except in cases involving fee and cost-shifting rules, when counsel frequently testify as experts on customary attorney’s fees). ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [January 17, 2013, 10:11pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/15 "2013-01-17T22:11:56Z")
Similar question: Suppose someone is suing the government. Can they subpoena the government’s internal documents, similar to a private citizen, or is that protected by some sort of privilege? What brings this to mind is the Greenberg/AIG suit against the government. One part of the claim is that the government caused the collapse of AIG by refusing it access to funds that it allowed to other financial institutions in similar positions. And similar such claims. Can Greenberg compell the government to turn over all emails, notes, etc. relating to these decisions? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 17, 2013, 11:06pm UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/16 "2013-01-17T23:06:19Z")
It depends on whose documents are being subpoenaed. Those of officials who report directly to the president are covered by executive privilege and are discoverable only on a showing of “demonstrated, specific need” (unless they include sensitive military or diplomatic information, in which case they are not discoverable at all). Discovery of government documents generally is covered by the Administrative Procedure Act (and its state equivalents in a suit against a state), and only “administrative record” documents are discoverable - unless the plaintiff demonstrates that the administrative record is incomplete. The “administrative record” is essentially the documents an agency relied on in reaching its own policy decision. In the AIG case, the Treasury documents relating to the decision to bail out AIG are discoverable, except the Secretary’s documents and legal opinions and things like that. ---
**Author:** ![LinusK](https://avatars.discourse-cdn.com/v4/letter/l/258eb7/32.png) [@LinusK](https://boards.straightdope.com/u/LinusK)\ **Post date:** [January 18, 2013, 12:14am UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/17 "2013-01-18T00:14:49Z")
Can’t speak to everywhere, but where I live: Spouses can be forced to testify, if the spouse is the alleged victim in a crime. Defendants do not have to disclose anything ahead of time, with a few exceptions. Expert witnesses, for example. Prosecutors do have to turn over a witness list, if the defendant asks for it, though its likely to be useless. They’re not required to turn over anything that’s work product (like police reports) or anything they exhibit to the jury, if they don’t also submit it as evidence. Lawyers shouldn’t try cases where they’re also a witness because it creates a conflict of interest. For example, if I saw my neighbor drinking, and he got arrested, I probably shouldn’t be his lawyer in his DWI case because it’d get sticky if I were called to testify against him. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 18, 2013, 1:21am UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/18 "2013-01-18T01:21:20Z")
Huh? Police reports aren’t work product. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [January 18, 2013, 2:17am UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/19 "2013-01-18T02:17:28Z")
> [@Fotheringay-Phipps](#): > > Similar question: > > Suppose someone is suing the government. Can they subpoena the government’s internal documents, similar to a private citizen, or is that protected by some sort of privilege? Yes they can, and not only that, under the Freedom of Information Act, and many similar state laws, they have a particular right to see government documents. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 18, 2013, 2:37am UTC](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074/20 "2013-01-18T02:37:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It depends on whose documents are being subpoenaed. Those of officials who report directly to the president are covered by executive privilege and are discoverable only on a showing of “demonstrated, specific need” (unless they include sensitive military or diplomatic information, in which case they are not discoverable at all). Another big exception is freedom of information laws generally don’t cover proposal documents. For example, if I were an assistant to the Governor of New York and I wrote to him to suggest we solve NY’s financial problems by invading Pennsylvania and plundering all their gold, you couldn’t obtain a copy of my suggestion through a FOIL request because it was just a proposal and never an actual government policy. The idea is you don’t want to discourage people from “thinking outside of the box” by bringing up the issue of possible liability for suggestions that may be illegal, immoral, or insane (or all three, like my idea). [Next page](https://boards.straightdope.com/t/can-the-defense-force-the-police-da-investigators-to-testify/646074.md?page=2)