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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.