Upon what basis may a case be reopened to call another witness?


            It is within discretion of a trial judge to reopen a case and to admit additional evidence after both parties had rested and even after the jury has retired for its deliberations. State v. Shutt, 279 N.C. 689, 185 S.E.2d 206 (N.C. 1971).  Overwhelmingly, cases discussing the ability of a court to permit a party to reopen its case deal with criminal prosecutions.  However, it is clear that the rule permitting reopening by either side applies equally to civil matters.  See Castle v. B. H. Yates Co., Inc. , 18 N.C.App. 632, 197 S.E.2d 611 (N.C.App. 1973)(Trial court, in its discretion, may allow plaintiff or defendant to introduce further evidence after they have rested).

            North Carolina cases discussing the standard that a trial judge should apply in determining whether to permit the reopening of a case are few.  In State v. Allen,
19 N.C.App. 660, 199 S.E.2d 706 (N.C.App. 1973) a conviction was reversed due to the failure of a trial court to permit a defendant to reopen his case to question an additional witness. In Allen, after both sides rested and the case was submitted to the jury, defendant's counsel moved to reopen the case in order that he might present the testimony of an additional witness. The trial court denied the motion but permitted defendant's counsel to place in the record what the testimony of the witness would be. The witness then that two or three weeks prior to the trial he told defendant's counsel he did not remember whether defendant was on the job on the day of the crime, and for that reason no subpoena was issued for him.  However, since having that conversation and after defendant's brother had called him on the preceding night and told him it was urgent if he could remember anything, he had reviewed his own time cards for the date and now remembered exactly where he was on that date; that he knew that at about 3:00 p.m. on the date in question defendant was on a particular project where the witness was working with the defendant.  The witness testified that he felt he had shirked his responsibilities to the court.

            The Allen court noted that ordinarily, the trial judge's ruling, whether to reopen or to refuse to reopen, being a matter within his sound discretion, will not be reviewed on appeal. However, under the circumstances of the case, the trial court abused his discretion.

            It is obvious that the Court of Appeals deemed the testimony of the alibi witness critical to the defendant’s case.  Further, the testimony of the witness clearly showed that he was not called because the defense had good reason to believe that he did not have useful information.  Only after the case had been submitted did the defense learn of the useful testimony.

            While no North Carolina cases were found specifically articulating the analysis that should be used by a trial court in determining whether or not to permit a litigant to reopen its case to introduce additional evidence, other courts have provided factors they consider relevant.  In State v. White, 460 A.2d 1017 (Me. 1983) the court stated that in ruling on a motion to reopen a case, the presiding judge should consider several factors, no one of which is dispositive. Among factors to be weighed are (1) potential prejudice to the opposing party, (2) the probative value of the proffered evidence, (3) the new witness' vulnerability on cross-examination, and (4) the moving party's excuse for untimeliness of its offer.

Upon what basis may a witness be called who was not named on the witness list?


            For practical purposes it would seem that failure to include a witness on a witness list would be in essence seeking to have a witness not identified during discovery then testify at trial.

The admissibility of testimony by a surprise witness is within the discretion of the trial judge and is not reviewable on appeal absent a showing of abuse.  Kinlaw v. North Carolina Farm Bureau Mut. Ins. Co., 98 N.C.App. 13, 389 S.E.2d 840 (N.C.App. 1990). However, little guidance has been given as to how the court’s discretion should be applied. 

            In Kinlaw, the surprise witness was not listed as a witness for the Plaintiff.  However, in response to discovery the plaintiff had stated that he might call “any witness listed by the defendant.”  The witness in question had been listed by the defendant.  Further, prior to the introduction of the surprise expert’s rebuttal testimony, the trial court conducted a voir dire hearing to determine the underlying basis of his testimony. Defense counsel was also allowed to tape record that information so that he could confer with his expert prior to beginning his cross-examination of the witness. The trial court also gave defense counsel additional time after the witness testified prior to his cross-examination of the witness to confer with defendant's expert.  Thus, the Court of Appeals found no abuse of discretion.

            In State v. Harden, 42 N.C.App. 677, 257 S.E.2d 635 (N.C.App. 1979) the court held that there was no error in calling of a surprise witness where the witness, who came forward in the middle of trial, was apparently no more of a surprise to defendant than he was to the State, and the defendant was given advance warning and a chance to interview the witness before he was called.

            Although no North Carolina case delineates what a trial court must consider in exercising its discretion in permitting a witness not on the witness list to be called, it is apparent that the central concern is prejudice to the opposing party.  In Kinlaw the Court of Appeals emphasized the steps taken by the trial court to assure that there was no prejudice in permitting the testimony of the undisclosed expert.  Also, in Harden the court again noted that the defendant was provided with an opportunity to interview the witness before he was called.

            In summary, the trial court has extremely broad discretion as to whether to reopen a case or whether to permit a witness that was not disclosed to testify.  Although North Carolina has not articulated standards by which the trial court’s discretion may be measured, the considerations set forth by the Maine court in White seem appropriate in considering whether to reopen a case.  As to the question of permitting the previously undisclosed witness the absence of prejudice is probably the central consideration for the court.