“Any Trial Must Have Witnesses” Is False and Misleading

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“Any Trial Must Have Witnesses” Is Incorrect and Misleading; Many Civil As Well As Criminal Trials End Without Any Witnesses

WASHINGTON, D.C. (January 28, 2020) – Many advocating that the Senate impeachment trial of President Donald Trump must call witnesses, because all trials must have witnesses to be properly termed trials, are incorrect and misleading because many civil as well as criminal trials reach a conclusion without the need for witnesses live or otherwise (e.g., by deposition, videotape, etc.), and many are concluded at the very beginning without the need to call any witnesses, argues public interest law professor John Banzhaf.

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"While there is strong historical precedent for calling relevant witnesses to testify before the Senate when it is considering convicting an officer who has been impeached by the House, the argument that any 'trial,' including an impeachment trial in the Senate, must have witnesses to make it a real trial is neither true nor persuasive," argues Banzhaf.

If the facts of a case are not in dispute - e.g., both sides have stipulated to the facts, and to the authenticity of any relevant documents, etc. - and the only issue is whether or not the admitted conduct (often that reflected in documents) satisfies the legal elements required by a criminal statute, a defendant may be convicted or exonerated based upon uncontested evidence alone, without the need to have any witnesses testify at the trial, he notes.

Witnesses at the Senate trial?

Similarly, if the facts are likewise not in dispute in a civil action (e.g., one involving probate, contracts, torts, etc.), a defendant can be found liable or not liable without witnesses to testify as to facts which are clearly established by real (as distinguished from testimonial) evidence, stipulations by the parties, etc., says Professor Banzhaf.

On the date set for a criminal trial, it is not unusual - and certainly not unheard of - for the judge to dismiss the proceeding without hearing any witnesses (e.g., because they are outside the jurisdiction, cannot be located, or simply fail to show up), or because he finds that the defendant was denied certain important rights, there was misconduct by the government in instituting the criminal proceeding, the proffer of witness testimony would be insufficient to convict beyond the required reasonable doubt, etc.

Similarly, civil trials set to begin may be dismissed at the very beginning if the judge finds that the facts which the plaintiff has alleged would not constitute any existing tort (e.g., not all of the elements of the tort are satisfied), the conduct in question is protected by a valid constitutional or other privilege, crucial evidence was obtained illegally, etc. - or if all of the elements of the tort cannot be satisfied with the known evidence (which has been produced in pre-trial discovery), and therefore there can be no valid basis for going forward.

Impeachment vs regular trial

In the Trump impeachment proceeding, it is being argued that, even if all of the most damning allegations related to Ukraine are true, the President's conduct does not provide a constitutionally valid basis for removal by impeachment because it does not constitute a crime or even crime-like behavior, the alleged actions fell within the President's vast constitutional discretion, etc.  It is also being argued that the impeachment by the House is constitutionally defective because it was done in violation of Trump's due process or other rights.

If senators sincerely believe any of these arguments, or at least cite them as reasons for their position, they could vote to dismiss the proceeding without the need for any witnesses on either side because, under these theories of the case, there are no facts the witnesses could foreseeably testify to which could possibly result in a conviction and removal from office.

So, while there may be many valid and even compelling historical, legal, and logical arguments for the calling of witnesses in Trump's trial, the claim that there can't be a real trial without witnesses, that all trials must have witnesses, that the mere use of the word "trial" implies the need for calling witnesses, etc. is factually and legally incorrect, or at least misleading, argues Banzhaf.

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