AJ 104 Chapter 5

Witnesses

5 Issues Related to a Trial Witness

1. Who is competent to testify2. How the credibility of a witness is

attacked3. What can be done if a witness has a

faulty memory4. What a lay person is allowed to testify

about5. How and when expert witnesses are

used

Are You a Competent Witness?

Competent Witness Defined: A person who:

1. Understands the duty to tell the truth

2. Can narrate the events in question

If a person is not competent they will not be allowed to testify

Duty to Tell The Truth

The truth, the whole truth, and nothing but the truth Witness must understand the duty to

tell the truth and the consequences for not telling the truth

Is a Bible or “swearing” necessary? It becomes the duty of the jury to

decide if the witness is telling the truth

Duty to Tell The Truth

Exceptions Children

Cannot distinguish fact from fantasy Senility & Mental Illness

Inability to tell fact from fiction Hypnosis

Some courts ruled that witnesses cannot testify about things under hypnosis

Ability to Narrate

To be a witness, you must be able to communicate with the judge and jury about the events in question Must be able to understand questions Very young, Mentally challenged Language Barriers/Foreign Language Hearing Impaired

Procedure to Establish Competency

If a witness’s competency is at issue a hearing is held Prior to taking the witness stand Questions will be asked to determine

competency. “Voir Dire” Two issues are determined at the

hearing The duty to tell the truth The ability to narrate

Impeachment

The process of attacking the credibility of a witness

A function of cross-examination Designed to convince a jury they

should not believe the other side’s witness

There are six main methods of impeachment:

Bias or Prejudice If there is a bias or prejudice, it can

be inferred that they cannot testify objectively. Friendship

I would do whatever I could to help Hatred

I hope he gets what coming to him Family Ties

There’s nothing I wouldn’t do for my child

Bias or Prejudice

Other Examples include: Racial Prejudice

They “all” look/act/behave the same Financial Gain

Have you been compensated for damages

Motive If I testify, they won’t file charges

Other Grounds for Impeachment

Prior Felony Convictions In some cases (rarely) judicial

discretion will allow felons to testify Uncharged Crimes and Immoral

Acts Can be confusing & time consuming

Prior Inconsistent Statements I said it then, but what I meant was…

Other Grounds for Impeachment

Inability to observe – Physically/View

My Cousin Vinny Reputation

Restricted to the trait of honesty (truth and veracity) “I heard he was a liar”

The credibility of a witness is easily diminished if it is shown that other people believe the witness is a liar.

Rehabilitating a Witness To restore the credibility of a witness Once a witness has been impeached,

upon re-direct testimony, the attorney will try to convince the jury their witness was truthful.

Rehabilitation is the opposite of impeachment, it attempts to focus on good deeds.

Rehabilitation

Three Common Approaches: (Inconsistent Statements) Lying for a reason Statement taken out of context Introduce a statement before the

inconsistent statement

Rehabilitation Grounds Good Behavior

I did that in the past, but not anymore Witness Currently Telling the Truth

I was afraid that why I lied….. Lack of Impairment by Handicap

Designed to show that handicap was not a factor or grounds to impeach

“Even a deaf person can hear……..”

Rehabilitation Grounds

Use of Expert Witness To confirm a piece of evidence crucial

to the case Based on reputation

Use other witnesses to convince the jury that they are the most credible regarding reputation.

Corroboration The credibility of a witness is stronger if

additional evidence can support the witness testimony. Accomplice testimony (mandatory)

Corroboration is different from cumulative Corroborative confirms testimony by use of

another source Cumulative repeats what was said.

Memory Failure

Occurs after long periods Anything can be used to refresh

memory Witnesses must be able to testify

from memory, not from what has been refreshed. Present Memory Refreshed Rule

Past Recollection Recorded Exception

Exception to the Hearsay Rule: Statement would be admissible if

declarant testified at the current trial. Witness currently has insufficient

present recollection to testify fully and accurately

Report made at a time when the facts were fresh in the memory of witnesses

Past Recollection Recorded Exception

Report was made by the witnesses, someone under his/her direction to record the witness’s statements.

Witness can testify that the report is a true statement of the facts.

Report is authenticated as accurate

Unavailable Witnesses

Death Relocation Hiding Former testimony (under oath) can

be introduced at trial if the witness is not available.

Types of Witnesses

A witness, someone who observed something Two types of witnesses 1. Lay 2. Expert

Types of Witnesses A lay witness is a person who observed

an event that is relevant to the case on trial Most people testify as lay witnesses

An expert witness is a person who is called to testify about a relevant event based on his/her special knowledge or training. They allowed if some evidence is beyond the

understanding of the jury

Opinion Testimony of Lay Witnesses If the witness is not testifying as

an expert, his/her testimony in the form of opinions is limited to opinions or inferences which are:

1. Rationally based on the perception of the witness

2. Helpful; to a clear understanding of the witness’s testimony or the determination of the facts in issue.

Expert Witness In order to use an expert, a foundation

must be laid that establishes the following: The jury needs the help of an expert There is a recognized area of expertise that

applies The person called to testify has the

appropriate background to qualify as an expert

Voir Dire

Uses of Expert Testimony Insanity

? Ballistics

? Blood and Tissue Matching

? Unlike lay witnesses, expert

witnesses may express professional opinions.