We have a weird frequent flyer in my county. We are currently preparing to go to trial on a misdemeanor false DL/ID case. Defendant has no substantive defense in this case, but he is attempting to pursue a "prosecutorial misconduct" defense at trial. Essentially, the argument is that he is being unfairly prosecuted because we do not prosecuted similarly situated people with the same charge.
As part of his defense, his attorney wants to call our elected county attorney as a witness. We are a small office with only 3 attorneys and our elected does all of the intake and sits first chair on most trials. The elected IS NOT a witness to the actual offense.
This raises two questions for us: (1) can the defense call a prosecutor as a witness? and (2) if so, can I (Assistant CA) prosecute the case, or do we need a pro tem?
You'll want to file a motion to quash the subpoena on the grounds of privilege and work product. There are some very limited grounds he might be able to compel testimony on, but most of it will not be allowed. You'll want to have a pretrial hearing hashing out what will and won't be allowed. I've handled several of these, if you want to email me with some questions.
This case may provide some useful information.
Possibly it is the genesis of the motion, so you may already be aware of it.
Exculpatory, impeachment, or mitigating information must be disclosed even if it is privileged. This is an affirmative duty to disclose even in the absence of a request by the defense. See 39.14(h)
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