Testimony of Witnesses Chapter 5 Witnesses and the Testimony of Witnesses

QUALIFICATIONS NECESSARY TO BE A WITNESS In order to be a witness, a person must satisfy the following requirements: Requirement of personal knowledge—the witness must have some personal knowledge of the matter before the court Requirement that every witness declare he will testify truthfully—most witnesses will take an oath swearing that they will tell the truth Requirement of competency, depending on the witness’ capacity to observe, remember, and narrate, as well as an understanding of the duty to tell the truth

THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE WITNESSES The law presumes that adults are competent The competency of a witness may be challenged, but the opposing attorney would have the burden of showing that the witness lacked one or more of the required qualifications Competency of witnesses can relate both to the ability of the witnesses to testify about a particular event they witnessed and also to circumstances that cast doubt on the credibility of that testimony

THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE WITNESSES (Cont.) A witness will not normally be judged incompetent based on circumstances that affect only the credibility of the witness. In cases where the prosecutor presents testimony by paid informants, the fact that the informant was paid to testify does not usually render the witness incompetent. The jury can decide what effect, if any, the circumstances should have on the credibility of the testimony given by the witness.

CHILDREN AS WITNESSES If a young child is called as a witness, the trial judge will first question the child (questioning the potential jurors is called voir dire) to determine if the child is competent to testify. The trial judge rules as to the child’s competence as a witness.

Washington v. Crawford (2004) limits admissibility of some child hearsay. State v. Hopkins (Wash. App. 2007) held that 3 year olds’ statements to relatives could be admitted but not their statement to social workers.

All states have statutes that enable children as young as 3 years of age to appear as witnesses. To protect children and minimize emotional damage, states have enacted statutes to help children in the following ways:

Testimony by closed-circuit television Videotaped testimony Statutes making it easier for children to be found competent to testify Special hearsay exceptions for child victims and child witnesses Use of anatomical dolls in criminal child abuse cases Closing the courtroom to all but necessary parties Use of leading questions with child witnesses Limiting the length of time a child is on the witness stand Limiting the number of interviews with child victims Requiring speedy handling of cases involving child victims

VOIR DIRE The phrase voir dire (French for “to speak the truth”) is the term used to describe the preliminary examination used to determine whether a witness or juror is competent or qualified. The voir dire consists of questions to determine whether they are competent and what their interests and biases are. Questioning during voir dire is usually done by the trial judge, but depending on the law or practice within the state, the questioning could be done by the attorneys.

CREDIBILITY OF WITNESS Methods to keep witnesses honest Witnesses must take an oath or affirmation that they will tell the truth. Witnesses must be personally present at the trial. Witnesses are subject to cross-examination. Witnesses that do not tell the truth run the risk of being charged with perjury. If a witness refuses to testify or refuses to answer questions that are not privileged, they could be found in contempt of court and punished.

CREDIBILITY AND THE WEIGHT OF EVIDENCE It is up to the judge or jury, as the trier of fact, to determine whether statements made by witnesses are to be believed and what weight to give them. The following factors are considered when determining the credibility and weight of testimony from a witness: Perception—did the witness have the opportunity to observe and perceive accurately? Memory—has the witness retained an accurate impression of what he/she saw, heard, or smelled, and is the memory of the events accurate? Narration—does the testimony of the witness and the language used accurately describe the events?

CREDIBILITY AND THE WEIGHT OF EVIDENCE (Cont.) The incontrovertible physical facts rule (also known as the physical facts rule) holds that the fact-finding body will give no weight to witness statements that are inherently incredible, unbelievable, and contrary to physical facts, known physical laws, general knowledge, or human experience. In a jury trial, the jury is the sole judge of the credibility of all witnesses, including the defendant if he takes the witness stand. The jury evaluates the weight and credibility of testimony free from the influence of the trial judge.

DEMEANOR AS EVIDENCE IN JUDGING WITNESSES Not only are the words of a witness evidence in a trial, but the demeanor of the witness has been held also to be evidence that may be used in determining credibility.

CONSTITUTIONAL RIGHTS OF DEFENDANTS REGARDING WITNESSES The right to compel the attendance of witnesses A subpoena is a command to the person to whom it is directed to appear on a specified date at a given time and place for the purpose of testifying A subpoena duces tecum could also be issued requiring the person to bring documents or other materials that are expected to be useful in the proceedings Only competent witnesses who have a personal knowledge of facts relevant to the case may be subpoenaed

CONSTITUTIONAL RIGHTS OF DEFENDANTS REGARDING WITNESSES (Cont.) The right to confront and cross-examine witnesses The witness not only testifies in open court in the presence of the accused but is also subject to cross-examination by the opposing party Cross-examination is considered to be one of the safeguards of the accuracy and completeness of testimony by a witness The defendant’s right to testify in his or her defense Defendants have a right to testify on their own behalf Defendants who take the witness stand to testify on their behalf waive their right to remain silent and must answer questions on cross-examination

TYPES OF WITNESSES AND OPINION EVIDENCE Ordinary witnesses and expert witnesses Most witnesses are ordinary witnesses and are called to testify about the first-hand information they have regarding the case before the court. Their testimony is usually limited to what they have seen, heard (hearsay is in most instances excluded), smelled, felt, and on rare occasions, tasted. Law enforcement officers appear in most cases as ordinary witnesses, although some officers also appear as expert witnesses when they qualify, testifying about fingerprinting, traffic matters, weapons, etc.

TYPES OF WITNESSES AND OPINION EVIDENCE (Cont.) An expert witness is a person who has had special training, education or experience. Due to this experience and background, the expert witness may be able to assist the jury and the court in resolving the issues before them. Three questions are presented to a trial court when one of the parties seeks to introduce an expert witness: Is the subject on which the expert witness will testify one for which the court can receive the opinion of an expert? What qualifications are necessary to qualify the witness as an expert? Does the witness meet these qualifications?

TYPES OF WITNESSES AND OPINION EVIDENCE (Cont.) The trial judge has to determine whether the expert testimony is reliable enough to admit into evidence. Qualification as an expert in some fields requires years of formal education, training, certification, or license. It is the fact finder (jury or judge) who determines the weight and credibility to be given to the testimony of both expert and ordinary witnesses.

OPINION EVIDENCE BY ORDINARY WITNESSES Neither the ordinary nor expert witness would be permitted to give an opinion as to whether the defendant is guilty or innocent. Testimony of ordinary witnesses may include opinions and conclusions on common things that are within the knowledge of the average person.

Knowledge of the defendant (e. g Knowledge of the defendant (e.g., gestures, manner of speaking) by a witness may be allowed (e.g., Dawson v. State, GA. 2008).

DIRECT EXAMINATION OF WITNESSES The first witnesses to appear in criminal cases are government witnesses called by the prosecutor to support the state’s case. The question-and-answer method is used so that the opposing lawyer may object to the question before the answer is in evidence. By the use of short general questions, the witness is able to tell the story and at the same time is kept to the point.

CROSS-EXAMINATION OF WITNESSES After the direct examination, the witness may then be cross-examined by the opposing attorney. The purposes of cross-examination are: To test the believability of a witness and the truth of his testimony To bring out facts supporting the cross-examiner’s case To impeach (discredit) the witness

IMPEACHMENT Is another aspect of cross-examination that is intended to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony

Law enforcement officers are usually important witnesses in a trial and the defense will try to impeach them. The Supreme Court (Napue v. IL, 1959) has held that due process protection requires the government to disclose to the defendant information regarding witness credibility prior to trial. Any prior falsehood by law enforcement can taint trial credibility.

IMPEACHMENT Impeachment may be accomplished by cross-examination and also by introduction of evidence. The functions of impeachment may be classified as follows: To attack the witness’s credibility and qualifications to testify truthfully because of prior criminal conviction (and in some jurisdictions and some instances, a showing of prior bad conduct) To attack the testimony given by the witness on direct examination by showing prior inconsistent statements To attack the witness’s credibility by showing bias, prejudice, or ulterior motives of the witness

OBJECTIONS TO QUESTIONS Objections to questions are the first line of defense against statements the opposing party seeks to use. It is the lawyers who must object, not the judge. In most instances, failure to object waives the right to an appeal to a higher court. The trial judge has considerable discretion in ruling upon objections and in determining what is relevant, material, and competent.

Objections! Objections are classified as follows: Objections to the substance of the question Objections to the form of the question Objections to the answer

THE REQUIREMENTS OF RELEVANCY, MATERIALITY, AND COMPETENCY To minimize confusion and to make trials manageable, it is required that all evidence must be relevant, material, and competent To introduce facts, testimony, or a physical object, it must be shown that: The evidence addresses a material fact It is relevant to the fact It is able to affect the probable truth or falsity of that fact by being competent

MATERIAL & RELEVANT A fact is material if it will affect the result of a trial. Evidence is relevant if it has a tendency to make material fact more or less probable.

REDIRECT EXAMINATION AND RECROSS-EXAMINATION After the cross-examination, the lawyer who produced the witness may then conduct a redirect examination of the witness. The purposes of a redirect examination can be defined as follows: To restore the credibility of a witness who has been impeached on cross-examination by explanation of matters on which the cross-examiner sought to impeach the witness To restore the credibility of a witness by pointing out prior consistent statements when the impeachment was made by means of prior inconsistent statements

REDIRECT EXAMINATION AND RECROSS-EXAMINATION (Cont.) Additional witnesses may be used to rebut the cross-examination and assist in rehabilitation. New evidence may also be presented if the cross-examination opened the door to new matters.

RECROSS-EXAMINATION Recross-examination is the fourth and usually the last stage of the examination of the witness. The recross-examination is usually confined to matters dealt with on the redirect examination.

THE ROLE OF THE TRIAL JUDGE The trial judge manages the courtroom, the trial, and rules on questions of law. The judge rules on motions and objections made by attorneys before and during a trial and gives instructions to the jury. The trial judge has the obligation to safeguard both the rights of an accused and the interests of the public in the efficient and effective administration of criminal and civil justice. The trial judge may not comment on the weight of the evidence.

THE ROLE OF THE TRIAL JUDGE (Cont.) Federal Rule of Evidence 614 (b) allows the court (the trial judge) to interrogate witnesses. In a few states, jurors are permitted to question witnesses indirectly through the trial judge. Almost all federal courts permit jurors to ask questions of witnesses by submitting the questions to the judge. As with questions posed by the judge, the parties may object to these questions on the same grounds as questions asked by one of the parties.

CAN A PERSON WHO HAS BEEN HYPNOTIZED TESTIFY AS A WITNESS? Studies of hypnosis began over two hundred years ago, but to date, there is no single explanation of the phenomenon that satisfies most scientists. The U.S. Supreme Court identified the following three problems in the use of a witness whose testimony has been hypnotically refreshed: The subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval The subject is likely to fill in details from the imagination in order to make an answer more coherent and complete

CAN A PERSON WHO HAS BEEN HYPNOTIZED TESTIFY AS A WITNESS? (Cont.) The subject experiences “memory hardening” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. Because of these and other problems, some states will not permit the use of hypnotically refreshed testimony as evidence. Other states have established guidelines for the use of hypnotically refreshed testimony. Another problem area commonly associated with hypnotically refreshed memory is that of “repressed memories.”