# Could This EVER Happen? (Defense Council called as Prosecution Witness)? **URL:** \ **Category:** Factual Questions\ **Created:** [December 17, 2013, 4:15pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565 "2013-12-17T16:15:50Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [December 17, 2013, 4:15pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/1 "2013-12-17T16:15:50Z")
On “Perry Mason” today,Perry was representing a woman charged with murder. In his role as detective, Perry had shown up at the victims home, within an hour of the murder. Prosecutor Burger called him as a witness, for the prosecution-could this actually happen? Doesn’t sound right to me. ---
**Author:** ![dolphinboy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dolphinboy/32/330_2.png) [@dolphinboy](https://boards.straightdope.com/u/dolphinboy)\ **Post date:** [December 17, 2013, 4:22pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/2 "2013-12-17T16:22:54Z")
AFAIK, anybody can be subpoenaed to testify in court. If Perry was the first person there he might have seen something that the police missed that might be relevant to the prosecution. I doubt it happens very often, but I don’t think it’s impossible. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 17, 2013, 4:42pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/3 "2013-12-17T16:42:29Z")
> [@ralph124c](#): > > On “Perry Mason” today,Perry was representing a woman charged with murder. In his role as detective, Perry had shown up at the victims home, within an hour of the murder. Prosecutor Burger called him as a witness, for the prosecution-could this actually happen? > Doesn’t sound right to me. I’ve seen a criminal defense counsel called as a witness once (but he represented a cooperating witness, not a defendant in that case). Civil cases will not infrequently have attorneys end up as witnesses, especially when trying to enforce settlement agreements. That being said, without watching the episode, it sounds like it was massively unethical for Perry to take the representation in the first place. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 17, 2013, 5:08pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/4 "2013-12-17T17:08:29Z")
It’s “counsel,” not “council,” and yes, it happens but not often, in my experience. Ohio Evid.R. 605 says a judge can’t testify in the trial over which she’s presiding, and Evid.R. 606 says a juror hearing a case can’t testify in that case, but there’s no prohibition against a lawyer testifying in the case (although obviously attorney-client confidentiality may be an issue). I most often see lawyers testifying either as plaintiffs seeking attorney fees, or less frequently as expert witnesses as to the quality of legal services provided. As a prosecutor in a capital case, I was once called to testify as to a juror who walked up to me in the courthouse atrium during a break in the trial and wanted to talk (after conviction but before sentence had been imposed). The judge decided no harm, no foul. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [December 17, 2013, 5:15pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/5 "2013-12-17T17:15:30Z")
If the defense attorney is going to be called as a witness, the prosecution would probably make a motion pre-trial to disqualify the attorney and request that the defendant get a different lawyer for trial. Most states have a Rule like Washington’s RPC 3.7 > [@](#): > > A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless…[exceptions]. Lawyers are careful (more careful that Mr. Mason) about acting in a way that would make them a necessary witness. We bring investigators with us to murder scenes so that if something happens, the investigator can testify and we can stay on the case. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [December 17, 2013, 5:32pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/6 "2013-12-17T17:32:25Z")
Clarence Darrow called William Jennings Bryan to the stand during the Scopes trial, didn’t he? Not exactly the same scenario, but it implies that there are certain circumstances under which it can be permissible for counsel to testify. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [December 17, 2013, 8:13pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/7 "2013-12-17T20:13:07Z")
When I was an assistant prosecutor in another county, my boss was occasionally asked if he wanted to come to a crime scene to see something, and his answer was always the same: “Hell no! If I see something at the crime scene, I become a witness, and then I’m off the case. YOU investigate it and bring it to me.” Makes sense to me. I don’t know what Jack McCoy is thinking, always strutting around crime scenes with the cops. ---
**Author:** ![DataX](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@DataX](https://boards.straightdope.com/u/DataX)\ **Post date:** [December 17, 2013, 8:25pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/8 "2013-12-17T20:25:34Z")
> [@Elendil\_s\_Heir](#): > > It’s “counsel,” not “council,” and yes, it happens but not often, in my experience. Ohio Evid.R. 605 says a judge can’t testify in the trial over which she’s presiding, and Evid.R. 606 says a juror hearing a case can’t testify in that case, but there’s no prohibition against a lawyer testifying in the case (although obviously attorney-client confidentiality may be an issue). > > I most often see lawyers testifying either as plaintiffs seeking attorney fees, or less frequently as expert witnesses as to the quality of legal services provided. > > As a prosecutor in a capital case, I was once called to testify as to a juror who walked up to me in the courthouse atrium during a break in the trial and wanted to talk (after conviction but before sentence had been imposed). The judge decided no harm, no foul. Were you doing that as an abundance of caution - or did the juror actually do something wrong? I thought usually a juror was excused after the verdict was read and could usually do what they wanted. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [December 17, 2013, 9:57pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/10 "2013-12-17T21:57:40Z")
> [@Smapti](#): > > Clarence Darrow called William Jennings Bryan to the stand during the Scopes trial, didn’t he? Not exactly the same scenario, but it implies that there are certain circumstances under which it can be permissible for counsel to testify. Since the entire trial was a set up I don’t think it would be a good example of precedent when it comes to procedure. Made for a great movie though. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [December 17, 2013, 11:41pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/11 "2013-12-17T23:41:45Z")
> [@Elendil\_s\_Heir](#): > > I most often see lawyers testifying either as plaintiffs seeking attorney fees, or less frequently as expert witnesses as to the quality of legal services provided. Some courts in custody/termination of parental rights cases will have a lawyer servings as _Guardian ad Litem_ testify. Hasn’t happened to me yet, but I expect it probably will eventually. I do a good deal of GAL work. > [@DataX](#): > > Were you doing that as an abundance of caution - or did the juror actually do something wrong? I thought usually a juror was excused after the verdict was read and could usually do what they wanted. In a capital (death penalty) case, there are two phases in the trial. The first phase is to determine if the defendant is guilty–if so, the second phase is the penalty phase, where the jury will decide whether the defendant should get the death penalty. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 18, 2013, 4:24am UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/12 "2013-12-18T04:24:07Z")
I was a GAL once. Never had to testify, though, as I recall. I think I just submitted a written report. Correct as to the penalty phase in a capital case. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 18, 2013, 5:25am UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/13 "2013-12-18T05:25:14Z")
At the federal level, the Department of Justice has [guidelines](http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/13mcrm.htm) limiting a prosecutor’s ability to seek evidence from a defendant’s counsel. ---
**Author:** ![Dendarii\_Dame](https://avatars.discourse-cdn.com/v4/letter/d/bbce88/32.png) [@Dendarii\_Dame](https://boards.straightdope.com/u/Dendarii_Dame)\ **Post date:** [December 18, 2013, 3:10pm UTC](https://boards.straightdope.com/t/could-this-ever-happen-defense-council-called-as-prosecution-witness/676565/14 "2013-12-18T15:10:15Z")
IANAL, but Mason does a number of things that strike me as decidedly “iffy” in the novels. In one, he comes into possession of a gun that he has good reason to believe is a murder weapon. He has his secretary, Della, put it in the ladies’ room at the restaurant of the gun’s owner, in a manner in which it will eventually be found. In another, he goes to a crime scene after it’s been searched by the police. He finds a scarf belonging to his client, and takes it away. Burger finds out about this, and plans to charge Mason with being an accessory after the fact or whatever. But Lt. Tragg, the police detective, tells the judge that the scarf wasn’t there when the place was searched, so it was okay for Mason to take it.