TESTIMONY OF WITNESSES

TESTIMONY The sworn statement given by a lay or expert witness who has personal knowledge of the facts being tried in court.

TESTIMONY Witnesses also authenticate and explain writings and material objects.

SIXTH AMENDMENT The defendant has the right to: SUBPOENA - A court order that commands the presence of a witness in court. The defendant has the right to subpoena witnesses.

CROSS-EXAMINATION - The defendant has the right to confront, clarify, and impeach witness testimony and bring out facts that are exculpatory in nature. See exculpatory definition on website-

WITNESS EXAMINATION PROCESS DIRECT Examination: Initial examination by the side calling the witness.

RECROSS Examination: Re-questioning of a witness by opposing counsel (cross-examiner) for the purposes of clarification or impeachment

REDIRECT Examination: Re-questioning by the side who called the witness for the purposes of clarification or rehabilitation.

CROSS Examination: rebuttal questioning by opposing counsel for the purposes of testing, clarification, or impeachment. The witness may be cross-examined about any matter brought out during direct examination

CONTEMPT OF COURT Court sanction (misdemeanor or civil fine) when a witness: 1) Fails to respond to a subpoena. 2) Refuses to be sworn as a witness. 3) Refuses to answer material questions. 4) Violates an order of the court.

PERJURY A felony for knowingly giving False Testimony in court. IT is also a felony for an officer to intentionally make a False Statement in a police report.

PRIVILEGE Statutory provisions when a witness can legally refuse to testify in court. EXAMPLES: A. Husband-Wife B. Attorney-Client C. Clergy-Confessor A witness cannot be found in contempt of court for claiming a privilege.

LAY WITNESS An everyday person who has some personal knowledge of the facts being tried in court. A lay witness doesn’t possess a special skill or knowledge in a relevant field. GENERAL RULE: A lay witness can only testify to facts within one’s personal knowledge. Cannot express an opinion or conclusion in conjunction with one’s testimony.

LAY WITNESS Exception : Opinion Evidence Rule. Most police officers testify their entire careers as Lay Witnesses.

EXPERT WITNESS An expert witness possesses Special Knowledge, Skill, Training, or Education relevant to the facts being tried in court.

An expert witness is allowed to express an Opinion OR Conclusion in his / her area of expertise (knowledge). Areas of Expert Witness Testimony:  Medical, Document Examiner, Fingerprints,  Ballistics, Trace evidence, Serological Analysis,  Chemical Tests, Collision Reconstruction,  Narcotics, Gangs, Child Abuse, Psychiatrists,  Sociologists, Criminologists.

EXPERT WITNESS An expert witness is qualified to testify either through: VOIR DIRE – examining a witnesses’ qualifications to testify in court. STIPULATION – agreement between both counsels.

OPINION EVIDENCE RULE A lay witness is permitted to give an opinion during testimony when: 1) The testimony is based on the personal knowledge of the witness. 2) The opinion is helpful to the clear understanding of the testimony. 3) The opinion is based on an area covered under the Opinion Rule.

Common Matters Involving a Lay Witness Opinion: 1. Personal Appearance or Demeanor: A. State of Emotion – Angry, happy, fearful, nervous, sad scared A stalking or robbery victim appeared scared and fearful. A witness giving a spontaneous statement appeared excited and emotional. A suspect appeared calm and reflective when waiving his Miranda Rights. A domestic violence suspect appeared aggressive and agitated.

B. Physical Characteristics Indicative of Alcohol or Drug Intoxication: Unsteady balance Odor of alcohol or marijuana Slurred speech EXAMPLE: DUI Stop and Investigation 1) The officer has personal knowledge. 2) It is helpful to the testimony. 3) Officer may give an opinion that the suspect appeared to be under the influence of alcohol. 4) Any person can testify to the above if witnessed under this rule

C. General Physical Condition: Injury Abuse Pain Sickness Weak Healthy Example:  Corporal injury to a child, adult and child abuse.  Domestic Violence Case: An officer may give an opinion that the victim appeared to have sustained a Traumatic Injury.

2. Measurements, Speed, Distance, etc 1) Distance 2) Speed of a vehicle. 3) Value of an item. 3. Age, Identity, Physical Description, Voice 1) In-Field-Show-up where a robbery victim didn’t see the suspect’s face. 2) Mistake of Fact in an unlawful sexual intercourse case. 4. Physical Characteristics and Properties of Substances 1) Appeared to be a bloodstain 2) Field identification of rock cocaine 3) Power Tattooing (Gunshot Residue) 4) Drugs and Packaging

OPINION EVIDENCE RULE