Government declares monopoly on right to call journalist James Risen as witness


What a novel tactic. I would be very surprised if it worked.

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Um, lawyer here, and the article is either misunderstanding, or misrepresenting, whether this is something unusual or underhanded for the government to be asking. It’s not. According to the government’s brief, Risen has refused to provide any testimony in this case, including at a recent hearing that was held for the very purpose of determining whether he’d answer questions (he wouldn’t). Since the government hasn’t been able to cross-examine Risen prior to trial, despite attempting to do so, it doesn’t want him testifying at the trial.

This is not at all an unusual request. No trial lawyer would be happy with a witness refusing to testify during pretrial discovery, only to take the stand at trial and surprise the lawyer with his testimony for the first time then. The whole point of pretrial depositions is to prevent that sort of surprise. And there are lots and lots of opinions out there in which courts have prevented witnesses or parties from offering evidence at trial that was withheld before the trial. It’s common for courts to rule that evidence withheld during discovery – even if it’s withheld for a good reason – can’t be used for the first time at trial.

The same goes for the request that the jury be instructed that Risen isn’t on the stand because he’s refused to testify, and the jury shouldn’t draw conclusions in favor of either side as a result. That sort of motion in limine is routinely filed, and granted, when a jury might be wondering why an important witness isn’t testifying.

This stuff isn’t novel (and it’s certainly not the government declaring a “monopoly” on Risen’s testimony, BB headline writer). It’s trial practice 101.


I guess most of us are used to only watching trials on TV, where the “surprise witness” has long been a favourite trope for desperate writers trying to inject some tension in to proceedings.

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is it time to break out the “JE SUIS JAMES RISEN”?

Another lawyer here. Here’s how I read this. When a witness is “unavailable,” several exceptions to the rule against the admission of hearsay become applicable. A ruling that Risen is unavailable is nothing but a ruling that the court is provisionally going to allow certain kinds of hearsay evidence.

I’m going to add a few notes on criminal procedure here because, if you know some civil procedure, criminal procedure can throw you a bit. (Federal procedure might be a hair different than I’m saying, but the essence should be right.) Discovery in criminal cases is really limited compared to civil cases. Basically, the two sides exchange things like reports, video recordings, and most important here, witness lists. In other words, with extremely limited exceptions, both sides have to declare their possible witnesses in advance. There is no right to depose the other side’s witnesses. In fact, for all practical purposes, there are no depositions in criminal cases. As a result, a court isn’t going to bar a witness for refusing to be deposed. That’s a thing in civil cases.

There might be a situation or two a court would grant a prosecutor’s motion in limine to bar a defense witness. One might be if defense counsel disclosed the witness too close to trial. Another might be if defense counsel failed to provide adequate information about an expert witness. Both of those would be called barring a witness’s testimony. Neither would be called declaring a witness unavailable.

Nothing here sounds like the defendant named Risen as a witness and the court barred his testimony.

That said, I found the article pretty unsatisfactory and would want to see the actual relevant documents before I felt a lot of confidence about saying what happened.


I am not a lawyer at all, but at the very least none of the quoted bits say anything resembling “no one but us can call Risen as a witness.” In fact it sounds like it wouldn’t matter if they did, if Risen has refused to testify for either side.

So I’m confused. Is there something in the non-quoted, non-linked material that makes any of this make sense?

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You know what, I don’t care about the litigious details. What the justice department is doing is wrong and is not in my interests as a citizen. James Risen is a journalist and I need to know what is going on in government. I don’t care about anything else.


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