LEGAL PRINCIPLE: CRIMINAL PROCEDURE – Calling of Witnesses – Prosecution’s Discretion in Calling Witnesses
PRINCIPLE STATEMENT
The prosecution has the duty to prove facts in issue but is not obliged to call every witness mentioned in testimony or statements; prosecution need not call any particular number of witnesses except where corroboration is legally required or to prove specific facts.
RATIO DECIDENDI (SOURCE)
"The prosecution has the duty only to prove facts in issue, and for the purpose is not obliged to call every or any number of witnesses or indeed, save any law where corroboration is necessary, or a fact is one witness on any particular point. Prosecution will in fact be a very laborious exercise and the task of the trial court unduly cumbersome if every person whose name has been mentioned in the testimony or statement of every case will be regarded as a material witness whom the prosecution must call. That is fortunately not the law."
EXPLANATION / SCOPE
This principle defines prosecutorial discretion in witness selection and rejects the notion that prosecutors must call every available witness. The prosecution’s duty is to prove the elements of the offense beyond reasonable doubt, not to call every person with any connection to the case. Several considerations guide witness selection: (1) Materiality—witnesses must have evidence relevant to facts in issue, not merely peripheral matters; (2) Sufficiency—once facts are adequately proved, additional cumulative witnesses are unnecessary; (3) Credibility—prosecutors may select most credible witnesses among those available; (4) Efficiency—judicial resources are conserved by limiting witnesses to those necessary for proof. The principle establishes that merely being mentioned in statements or by other witnesses does not make someone a “material witness” the prosecution must call. Many persons may have peripheral knowledge without possessing evidence material to guilt. The prosecution retains discretion to determine which witnesses best prove their case. However, this discretion has limits: (1) Where corroboration is legally required (certain sexual offenses, accomplice testimony in some jurisdictions), the prosecution must provide the requisite witnesses; (2) Where a fact is essential and can only be proved by specific witnesses, those witnesses must be called or the fact remains unproved; (3) Where the prosecution deliberately withholds witnesses who would provide exculpatory evidence, this may violate fair trial rights. The defense may comment on non-calling of witnesses and invite adverse inferences where the prosecution fails to call obvious material witnesses within their control. But absent legal requirements for specific witnesses or clear prosecutorial misconduct, witness selection remains within prosecutorial discretion. This prevents trials from becoming unwieldy through calling marginally relevant witnesses while ensuring prosecution meets its burden through competent, material evidence.