A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant's first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel's standpoint, the father's testimony was critical because he was the only witness corroborating the defendant's version of the event. Moreover, in talking to members of the jury after the hung verdict, counsel learned that the jurors viewed the defendant's testimony as largely incredible, but found Brown's father to be very believable. Lawyers, courts, and commentators are sharply divided as to whom should have the final say when lawyer and criminal defendant disagree regarding the decision to call a particular witness. In the absence of a strong professional 'consensus regarding the proper allocation of decision-making power in the attorney-client relationship, criminal practitioners are given considerable latitude to decide for themselves how to resolve decision-making disputes with their clients. This article seeks to highlight the difficulty facing defense counsel by examining three variations of the strategic impasse that counsel faced in the Brown case.
Rodney J. Uphoff, Who Should Control the Decision to Call A Witness: Respecting A Criminal Defendant's Tactical Choices, 68 U. Cin. L. Rev. 763 (2000)