A rebuttal witness is a witness called to testify in response to some other evidence presented previously in the court proceeding (hearing or trial).
In the article that follows, we’ll explain more about what a rebuttal witness is, what they are used for, and when they are called.
Rebuttal Witness: What Does That Mean?
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What Does It Mean To Be “Rebuttal Witness?”
“To rebut” something means to claim or prove the opposite, or to repel an attack.
A rebuttal witness is called in a trial to offer evidence that is the opposite of something previously presented or argued. .
Order of Presentation of Evidence
The presentation of evidence in hearings or trial is very formulaic.
In civil trials, after opening arguments, the Plaintiff or Petitioner (the party that initiated the case) has the first opportunity to present all of the evidence they need to present to support the claims made in their pleadings.
The Defense or Respondent has the option to cross examine each of the witnesses the Plaintiff calls to the stand, but for the most part, the cross examination questions are limited to the topics and areas presented by the Plaintiff.
Once the Plaintiff “rests” their case, the Defendant has their opportunity to present evidence that contravenes or ‘rebuts’ the evidence presented in the Plaintiff’s case, and also to present evidence that proves any counterclaims made in the Defendant’s pleadings.
Once the Defendant ‘rests’ their case, the Plaintiff has one more opportunity to present evidence.
This is often called the Plaintiff’s ‘rebuttal case’ and is limited to the areas presented by Defendant in the Defendant’s ‘case-in-chief.’
In most cases, once the Plaintiff rests their rebuttal case, the trial will move on to administrative matters in preparation for closing arguments and jury instruction.
However, if the Plaintiff has raised some new evidence or new areas that the Defendant did not have an opportunity to respond to (or ‘rebut’) then the Defendant may be given an opportunity to present his own ‘rebuttal case’ and call his own ‘rebuttal witnesses.’
And again, if the Defendant raises anything new, the court may again give the Plaintiff an opportunity for another rebuttal opportunity.
However, by now, the judge will be very open to objections from the defense that the testimony constitutes new evidence outside of the scope of the previous presentations, and will likely limit the presentation of evidence to rebuttal evidence.
Who Can Be a Rebuttal Witness?
The parties are given broad authority to call whoever is necessary to be a rebuttal witness.
This could be calling a new witness who has not been previously examined in the trial, or re-calling a witness that was previously called.
This could even be calling to the stand a witness that the other side had brought to trial, much to the consternation of the witness and the opposing counsel.
A rebuttal witness can be an expert witness, or a layperson witness.
While many trial courts require that the parties provide written notice in advance of trial of the names of the witnesses the intend to call, there’s no requirement that attorneys give notice of potential rebuttal witnesses.
After all, before trial, no one knows for sure what exactly the evidence will be.
Limits of Rebuttal Witness
A rebuttal witness should generally be limited to presenting testimony that is within the scope of evidence previously presented in the trial.
To rein in the rebuttal witness (and the questioning lawyer), the opposing lawyer may need to jump up to make an “outside the scope” objection.
The judge of his own accord may also direct the lawyer to stay within the bounds of a particular topic.
That being said, if the court finds that the evidence is new but flows naturally from the previous topic area, he may allow it, but also allow the opposing side to present their own ‘rebuttal case.’
If the attorney forgets to present a certain bit of evidence during his case-in-chief, he will often try and slide it in during his rebuttal case.
This is also done at time for tactical reasons, to perhaps leave the end the evidence phase on a high note with the jury.
This can sometimes work, and sometimes not, depending on the judge and the objections of opposing counsel.
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