Why Rebuttal and Impeachment Witnesses Are Not Endorsed
In Oklahoma, both the State and the Defendant are generally required to provide a list of the witnesses they intend to call in their "case-in-chief." This process is called endorsement and is part of the discovery rules (Source 3.4).
The exception for rebuttal and impeachment witnesses is based on the practical and unpredictable nature of a trial:
Rebuttal Witnesses: The law does not require the impossible. Rebuttal evidence is often introduced to address unexpected evidence presented by the opposing party, and the nature of rebuttal testimony makes it impractical to mandate prior disclosure. Courts have consistently held that rebuttal witnesses need not be endorsed or disclosed in advance, as the evidence they provide is contingent on the developments during the trial. Davis v. State, 2004 OK CR 36, Ellis v. State, 2003 OK CR 18, Freeman v. State, 1984 OK CR 60.
Impeachment Witnesses: Similarly, an impeachment witness is called to challenge the credibility or truthfulness of an opposing witness. The need for an impeachment witness often arises during the trial. For example, if a State's witness provides testimony that the defendant knows to be false, the defendant must be allowed to call a different witness to contradict that specific statement. The defendant could not have predicted this specific testimony would be given, so they could not have endorsed the impeachment witness in advance.
In short, requiring the defendant to endorse these witnesses would be fundamentally unfair, as it would prevent them from responding to unexpected evidence or testimony that arises during the trial.
Why These Witnesses Are Immune from Sequestration
"The Rule of Sequestration" (codified in the Oklahoma Evidence Code at 12 O.S. § 2615) is a rule that, when invoked by a party, requires the court to exclude witnesses from the courtroom so they cannot hear the testimony of other witnesses. The purpose of this rule is to prevent witnesses from "tailoring" their testimony to match what others have said, thus ensuring their testimony is based on their own memory.
Rebuttal and impeachment witnesses are generally immune from this rule because their testimony is, by definition, supposed to be responsive to what was said in court.
Impeachment: For an impeachment witness to be effective, they must be able to challenge what a prior witness said. Their testimony is not about the primary facts of the case, but rather about the testimony of another witness. For example, to call a witness to say, "I was in the courtroom and heard Witness A testify that the light was red, and that is false," the impeaching witness must, by necessity, be aware of Witness A's testimony.
Rebuttal: A rebuttal witness is called specifically to counter evidence just presented by the other side. Their testimony is a direct response to in-court testimony.
Because the very purpose of these witnesses is to respond to testimony that has already been given, they are not sequestered. They often fall under the statutory exception for "a person whose presence is shown by a party to be essential to the presentation of the party's cause" (12 O.S. § 2615(3)), as their presence is essential to help the attorney identify and respond to the testimony that needs to be impeached or rebutted.
Author: Brian J. Boeheim
Brought to you by: Boeheim Freeman Law - Criminal Defense Attorneys - Tulsa, Oklahoma - 918-884-7791