Surprise Witness

Dancer: Your Honor, we must protest this whole affair. The noble defense attorney rushes out to a secret conference, and now the last-minute witness is being brought dramatically down the aisle. The whole thing has obviously been rigged to unduly excite the jury. It's just another one of Mr. Biegler's cornball tricks.

Biegler: Your Honor, I don't blame Mr. Dancer for feeling put upon. I'm just a humble country lawyer trying to do the best I can against this brilliant prosecutor from the big city of Lansing.

—Anatomy of a Murder

The introduction of a key witness at the climax of a trial. Particularly one which renders everything that has gone before moot or one which would have rendered the whole trial unnecessary from the beginning because their testimony clearly absolves the defendant, or more rarely, proves his or her guilt, depending on whether we're rooting for the defense or the prosecution.

If this take the form of physical evidence, it's a Smoking Gun.

Note: while the government may notify the defendant of witnesses and evidence on very short notice, in civil cases, surprise witnesses are highly unusual, unlikely, and disfavored. Of course, the open discovery practice in civil litigation makes horrible drama.

Examples of Surprise Witness include:

Film

• In My Cousin Vinny the District Attorney introduces a Surprise Witness, an FBI analyst. Vinny, having studied very hard to make up for his inexperience, points out that the prosecution in US criminal cases is not permitted to introduce a Surprise Witness, therefore he should be permitted time to investigate the witness. However, the real Surprise Witness of the movie is his fiancee, who proves that the car driven by the defendants couldn't have made the tire tracks of the murderers' car.
  • Despite it no longer being the page quote, it deserves to be quoted in full here:

Vinny Gambini: I object to this witness being called at this time. We've been given no prior notice he would testify. No discovery of any tests he's conducted or reports he's prepared. And as the court is aware, the defense is entitled to advance notice of all witness who will testify, particularly those who will give scientific evidence, so that we can properly prepare for cross-examination, as well as give the defense an opportunity to have his reports reviewed by a defense expert, who might then be in a position to contradict the veracity of his conclusions.
Judge Chamberlain Haller: Mr. Gambini?
Vinny Gambini: Yes, sir?
Judge Chamberlain Haller: That is a lucid, intelligent, well thought-out objection.
Vinny Gambini: Thank you, sir.
Judge Chamberlain Haller: Overruled.

• Subverted in A Few Good Men when Kafee points out two airmen who he implies would prove that part of Jessep's testimony was a lie. After he pulls a Perry Mason and gets Jessup into a Motive Rant, he admits to the prosecutor that it was a con, and the "surprise witnesses" wouldn't have been able to prove a thing.
  • Incidentally, in real life the prosecutor and judges wouldn't have allowed them to come to the stand: witnesses are not allowed to view a preceding witness's testimony.
  • This depends on the case, if neither side asks to exclude witnesses (which almost always, they would) then they would not be excluded. In some well-publicized cases, the judge has to remember to warn potential witnesses not to watch TV coverage of the trial.
• The climax of the trial in Anatomy of a Murder occurs when the defense attorney, after a moment's leave of absence, returns bringing in Mary Pilant, who had earlier disbelieved that the defendant's wife had been raped by the victim but now realizes the significance of a torn pair of panties she had found in the laundry chute.
• In the court scene of the Kentucky Fried Movie the prosecution produces a surprise witness - a woman thought killed in the incident the trial is about. She gets on the stand and fingers the person responsible for the incident - the reporter covering the trial.

Literature

• In the Star Wars Expanded Universe novel The Krytos Trap, a well-known X-Wing pilot was put on trial a few years after Return of the Jedi for the murder of a squadmate and turning traitor to the government. At the end of the trial, with a guilty verdict hanging over his head, the "dead" squadmate walks right in and blows the prosecution out of the water in all of five minutes, coincidentally having picked up the proof that the pilot wasn't a traitor on his way back from the dead.
  • In fact, that was the second surprise witness, after an Imperial agent defects with proof that the defendant is innocent but is shot before reaching the courthouse.
• Mrs Figg in Harry Potter and the Order of the Phoenix.
• Totally and almost sadistically subverted in The Brothers Karamazov; during the trial, a sick and borderline insane Ivan tries to save his elder brother Mitya by revealing who the real murderer is, but a) he isn't believed b) he finally snaps and loses his grip on reality c) his testimony prompts another witness to produce an apparently incriminating clue against Mitya, pretty much hammering the last nail on the coffin of the case.
• In Dan Abnett's Warhammer 40,000 Gaunt's Ghosts novel The Guns of Tanith, Commissar Viktor Hark intervenes in the trial of Trooper Cujj at the last minute, bringing in a surprise witness who absolves him of the rape/murder he's being charged for. Colonel-Commissar Gaunt then correctly deduces that the witness in question was a false witness Hark had prepared specifically to get Caffran off the hook to keep morale up in the regiment.
  • Gaunt himself then has to dredge up evidence to prove that there is reasonable doubt in the case of the person who actually did commit the crime and in order to get him off to prevent a split in the regiment.
• Miles Vorkosigan is a Surprise Witness at his own trial (it's complicated) in Lois McMaster Bujold's The Warrior's Apprentice.
• In Dorothy L. Sayers' Clouds of Witness, they are prepared to produce a Surprise Witness. Unfortunately, since it's an alibi by a woman he was having an affair with, it would be embarrassing all around, dangerous to the woman, whose husband is jealous, and prove the prosecution with a motive, since if the dead man knew it would be reason to silence him. Fortunately, Lord Peter Wimsey manages to produce a Smoking Gun instead.
• The entire premise of Agatha Christie's Witness for the Prosecution, later turned into a play & a film.
• In Irving Wallace's The Seven Minutes a publisher has been taken to trial for publishing a book (of the same name) which is allegedly pornographic. The trial revolves around whether the absent author (believed by hearsay to be dead, and insane when he wrote it) intended the book as a work of pornography or as a work of art. The prosecution favours the former, but is utterly torpedoed when a prominent witness for the defence turns out to be the author (who had published the book under a pseudonym). In this case, it is the identity and not the actual presence of the witness which is the surprise.
• In McAuslan's Court Martial, the defence hinges on the surprise testimony of Regimental Sergeant-Major Macintosh, who in response to carefully exact questioning informs the court that (i) he, the RSM, is an ex Scots Guardsman and therefore probably one of the ten smartest and most expert parade-ground soldiers in the entire British Army (ii) he has carefully trained the soldiers of his current regiment to the point that they will compare favourably to anyone except the Guards (iii) the regiment recently provided an honour guard for Edinburgh Castle, no less, at which event the need for smartness is a foregone conclusion, and (iv) at that event, the defendant Private John McAuslan, whose legendary dirtiness is a key plank of the prosecution case, was a member of the six-man guard detail. He then majestically rises and exits the courtroom before the stunned prosecutor thinks to cross-examine him and reveal (v) owing to bizarre circumstances that could make the regiment a laughing-stock, they drafted in McAuslan on that occasion not because his presence could be viewed as in any way desirable but because there was literally no-one else available.

Live Action TV

• These occasionally annoy the cast of Shark.
• Often in Law and Order, the mere threat of a surprise witness (even one who had a 50/50 chance of being kept from the stand) is enough to force a guilty plea.
• In the new Battlestar Galactica Reimagined, Romo Lampkin puts his "associate," Lee Adama, on the stand during the trial of Gaius Baltar, ostensibly as part of his motion for a mistrial; Lee had heard his father, one of the judges on the tribunal, call Baltar a "traitor" unworthy of a trial. However, Lee decides that he can go too far in his little war against his father, and refuses to directly testify about his father's statement. This still leaves the door open for Lampkin to ask other questions, resulting in a speech on the part of Lee that resulted in Baltar's acquittal. Probably justified by the fact that Lampkin was the only one who knew anything about law in the courtroom, and more than happy to fudge the rules a little.

Judge: This is highly unusual--
Lampkin: I can list half a dozen precedents off the top of my head.

• Parodied in Monty Python's Flying Circus episode 3 (along with several other Courtroom Antics), in which a barrister first calls a Mrs. Fiona Lewis, who babbles incessantly and incoherently. This is followed by "the late Arthur Aldridge", who is in a coffin and may or may not be dead), and then Cardinal Richelieu (as a character witness), who has of course been dead for over 400 years and is quickly "revealed" as a professional Cardinal Richelieu impersonator.
• Heroes episode "Pass/Fail":

Ando Masahashi: The defense calls Hiro Nakamura to the stand.
Hiro Nakamura: Don't you watch Law and Order? That always backfires!

• The French And Saunders sketch in which their backing band, Roland Rivron and Simon Brint, imagine suing Ralph McTell for publishing an "easy" guitar book without those little diagrams that show you where to put your fingers on the fretboard. Their surprise witnesses are Mark Knopfler, Lemmy, David Gilmour, Mark King, and Gary Moore; all of whom are utterly unable to play their own signature peices based on the book.

Rivron: I'd like to call to the stand another very surprising witness...

• Touched By an Angel episode Smoke screen has a tobacco company as a defendant of a class action lawsuit. Opposing counsel, Marc Hamilton, has to deal with a surprise witness near the end of the trial - his own mother. The court only acknowledges the conflict of interest by asking the plaintiff's council if she objects to Marc cross-examining his own mother, instead of dismissing the defendant for a conflict of interest. Instead, the court states that Marc is running out of "recesses" when he asks for one.

Video Games

• It's very rare for one of these not to bedevil Phoenix Wright: Ace Attorney in his cases at some point, and just as rare for him not to come back with one of his own.
  • And the surprise witness is usually the one who committed the crime in the first place, particularly if called by Winston Payne.
  • One case had a surprise witness turn up after the defendant had already been declared guilty. Nevertheless, he was allowed to testify, and he ended up blowing the case wide open.
• If you give Marcus Bishop's dagger at the end of act 1 of Neverwinter Nights 2, he'll be a Surprise Witness in your defense during the trial in act 2.

Western Animation

• The Simpsons: Like the Star Wars example, the "deceased" Skinner barges into the courtroom to clear Bart's name.
  • In another episode Lionel Hutz promised Homer "surprise witnesses, each more surprising than the last. I tell ya, the judge won't know what hit him."
  • In yet another Hutz stalls for time and brings out all his surprise witnesses again. The crowd groans, and we see that the witnesses are a man with a dummy, Santa Claus with a broken leg on crutches, John Swartzwelder (Simpsons writer), Ralph Wiggum and the McCrary twins on their motorcycles.
  • In yet another another episode, Bart *is* the surprise witness as only he could clear Mayor Quimby's nephew, but he would have to admit to cutting class to do so.
• Though not actually called as a witness, on Family Guy, Peter is on trial for murdering Lois, and is about to be found guilty, when the trial is interrupted—by Lois.
  • In another episode, Peter called out "The Ghost Who Never Lies" to testify on his behalf, and claimed only he could hear or see it. The judge allowed it.
• Subverted in the Trial episode of Avatar: The Last Airbender. Katara attempts to get Avatar Kyoshi to manifests herself through Aang in the hope that she will prove Avatar's innocence towards the murder of their king. Kyoshi did appear, but...

Aang: What happened?
Katara: Uhh, you kind of confessed. Sorry.

Real Life

• During the trial of the creators of The Pirate Bay, the prosecution pulled in a surprise witness—and was chewed out by the court and the press for trying to pull "some kind of Perry Mason-crap".