1. Criminal Evidence 6th Edition
Chapter 5 Witnesses—Lay and Expert
Criminal Evidence 6th Edition
Norman M. Garland

2. Witnesses—Lay and Expert
A person becomes a potential witness by having personal knowledge about the facts of a case to be tried. Personal knowledge may have been acquired through something seen, heard, smelled, or touched.
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3. Compelling the Testimony
An individual does not always have a choice whether or not to appear as a witness.
Anyone with information that may be of value in arriving at the truth in a trial may be compelled to be a witness.
This power to compel a witness to attend a trial is based on two clauses appearing in the Sixth Amendment to the Constitution of the United States: the Confrontation and Compulsory Process Clauses.
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4. The Confrontation Clause
The Confrontation Clause provides that "the accused shall enjoy the right to be confronted with the witnesses against him" and the Compulsory Process Clause states that "the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor."
Both of these rights are available to the accused in federal and state trials.
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5. Pointer v. Texas In this case the Court stated:
“We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment ”
“The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and Safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution.”
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6. Attendance of Witnesses
In order to ensure that a witness appears to testify, most lawyers will compel witnesses' attendance by issuing a subpoena.
A subpoena is an official document issued by either a judge, the clerk of a court, or an attorney and delivered to, or "served upon," the witness.
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7. Subpoena Duces Tecum
If the person has papers, records, or other physical evidence needed for the trial, the person will be served with a subpoena duces tecum.
This subpoena also directs the person to bring specific material to court.
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8. Witnesses: Failure to Appear
If a witness does not appear in accordance with an oral request, it is not a violation of a court order, and no penalty can be imposed.
A witness's failure to appear in response to a subpoena, however, is a violation of a court order and subjects the violator to the full range of judicial sanctions
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9. Methods of Subpoenaing Witnesses
In most jurisdictions, the attorneys (either the defense attorney or the prosecutor), issue their own subpoenas to compel the appearance of a witness.
In a few jurisdictions, the clerk or judge must issue the subpoena and the attorneys' duty is to furnish a list to the clerk of persons who are needed as witnesses.
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10. Serving of the Supoena
Although in most states anyone may serve a subpoena, in criminal cases the subpoenas are usually given to an officer of the court, who may be a deputy sheriff, a constable, or a marshal, to be served on the person named in the subpoena.
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11. Out-of-State Witnesses
A subpoena is valid only within the state in which it is issued.
Consequently, in the past, when a material witness in a criminal trial resided in another state, compelling an appearance created an obstacle.
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12. Uniform Act to Secure the Attendance of Witnesses
This act permits a court to issue a subpoena to an out-of-state witness and to have the subpoena sent to a court in that state.
The witness will be commanded to appear in that court, where a hearing will be held to determine whether he or she is a material witness.
If it is determined that the witness is material, he or she will be ordered to appear in the court where the original subpoena was issued.
A witness who fails to appear as ordered may suffer the same contempt sanctions as a witness within the state.
Again, the witness is entitled to compensation for appearing.
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13. Segregation of Witnesses— The Rule on Witnesses
The reason for segregating or excluding the witnesses is to prevent witnesses from hearing each other's testimony and being affected by it, either intentionally or unintentionally.
The rule on witnesses is designed to prevent the most overt form of witnesses' collaboration.
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14. Two Categories of Witnesses
Witnesses have been classified into two categories:
(1) the lay or ordinary witness
(2) the expert witness
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15. Lay or Ordinary Witness
The lay witness is a person who has some personal knowledge about the facts of the case and who has been called upon to relate this information in court.
The law enforcement officer will usually fall within the category of the lay witness.
The lay witness is permitted to testify about facts only and, with few exceptions, may not state personal opinions.
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16. Methods of Interrogating Witnesses
With respect to direct examination, the Federal Rules of Evidence have taken the traditional view that it is improper for an attorney to ask leading questions of the witness.
Unless an exceptions applies, direct examination must be by non-leading questions.
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17. Questioning the Witness
A leading question is one that suggests to the witness the answer sought by the questioner.
The law prefers open-ended, or non-leading, questions on direct examination because leading questions are by definition suggestive.
Leading questions could induce a witness to inadvertently adopt the questioner's suggestion. This is especially likely where the attorney posing the leading question prepared the witness to testify, and the witness has some relationship with the party represented by that attorney.
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18. Statutory Guidelines
FRE provides for exceptions to the rule prohibiting leading questions on direct examination:
1) with respect to undisputed preliminary or inconsequential matters
2) when a witness is hostile, unwilling, frightened, or biased
3) with respect to a child or adult witness with communication problems
4) with a witness whose recollection is exhausted
5) when laying a necessary foundation under certain circumstances
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19. Witness Interrogation: The Narrative Form
In this method, the witness is requested to state in his or her own words what happened in a particular instance.
This permits the witness to tell the story in a logical sequence, normally making it easier for the jury to follow evidence presented in this manner.
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20. Cross-examination and the FRE
FRE 611(c) says: "Ordinarily leading questions should be permitted on cross-examination."
No question may be asked on cross-examination unless its subject has been brought up during direct examination.
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21. Cross-Examination’s Primary Benefit: Impeachment
Perhaps the most important purpose of cross-examination is to persuade the jury to disbelieve the testimony of a witness, or to impeach the witness.
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22. Impeachment
Impeachment is a process or a result that diminishes the believability of a witness's testimony or destroys it. There are five basic methods of impeachment:
(1) by contradiction
(2) by proof of bad character for truthfulness
(3) by proof of prior inconsistent statement
(4) by proof of bias or motive to falsify
(5) by proof of lack of or diminished witness capacity
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23. Methods of Impeachment Contradiction
Impeachment by contradiction by cross-examination consists of asking the witness about facts that are directly in opposition to those testified to on direct examination.
For example, assume a defendant is charged with the unlawful sale of cocaine and further that he takes the stand and testifies denying the transaction and stating that he has never had any contact with any drugs.
If the defendant had been tested for drugs as a condition for his release pending trial a year before and the test was positive, on cross-examination, the prosecution would be permitted to contradict the accused's testimony by inquiring about the fact that the accused had tested positive for cocaine.
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24. Crimes of Bad Character for Truthfulness
The crimes that can be shown to impeach for bad character for truthfulness are:
A crime involving dishonesty.
Any crime punishable by imprisonment in excess of one year.
A crime involving dishonesty includes perjury, fraud, or embezzlement.
A crime punishable by imprisonment in excess of one year, including most felonies.
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25. Impeachment by Bad Character for Truthfulness
Impeachment by proof of bad character for truthfulness can be done in only two ways:
First, the witness can be impeached by proof that he or she was convicted of certain crimes.
Second, the witness can be impeached by questioning on cross-examination about specific bad acts that involve dishonesty but did not result in a conviction.
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26. Impeachment by Prior Inconsistent Statement
Impeachment by prior inconsistent statement consists of the cross-examiner asking the witness about the fact that the witness previously made statements contradicting the testimony given on direct examination.
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27. Impeachment for Bias
Impeachment for bias may take many different forms. Any interest the witness may have in the case or its outcome may be investigated on cross-examination to show bias or motive to falsify.
A relationship between the witness and a party, or a financial connection such as employment, or hatred or dislike for a party, are all examples of provable bias.
The law finds that bias is almost always, provable in any case. Particularly, ethnic or racial bias has been held to be provable.
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28. Impeach a Witness by Showing a Lack of Capacity or Impaired Capacity
Witness capacity consists of:
perception
memory
narration
sincerity
Poor eyesight, hearing, memory, or ability to speak effectively are all matters that can be attacked in many persons.
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29. Witness Must Answer Questions
A witness must answer all questions the judge permits, whether the questions are on direct examination or cross-examination.
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30. Contempt of Court or Perjury: A Dearth of Choices
If a witness absolutely refuses to answer a question and if the question is not incriminating, the witness can be held in contempt of court in addition to having his or her entire testimony stricken from the record.
Moreover, if a witness knowingly makes a false statement about a matter material to the case or swears or affirms the truth of a statement previously made that he or she knows to be untrue, the witness may guilty of perjury.
Perjury may be a misdemeanor or a felony carrying corresponding criminal penalties of fines or imprisonment.
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31. Opinion Testimony of Lay Witnesses
Opinion testimony of lay witnesses is restricted to those opinions or inferences that are "rationally based on the perception of the witness and helpful to a clear understanding of the witness'[s] testimony or the determination of a fact in issue."
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32. Guidelines on Opinion Testimony
The law has set guidelines by which a lay witness may relate information in the form of an opinion.
The opinion testimony must be rationally based on the witness's perception. In other words, the opinion must be one that a person could normally form from observed facts.
The opinion testimony must be "helpful to a clear understanding of the witness‘s testimony or the determination of a fact in issue."
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33. Proper Areas of Opinion Testimony
identity
handwriting
quantity
value
weight
measure
time
distance
velocity
form
size
intoxication
veracity
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34. Additional Areas of Opinion Testimony: We all have some!
age
strength
heat
cold
sickness
health
disposition
temper
anger
fear
excitement
general character
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35. Requisite Laying of a Foundation
Before a lay witness may express an opinion, a proper foundation must be laid to prove that the witness had personal knowledge of the facts upon which the opinion is formed.
Personal knowledge may be shown by evidence in the form of the witness's own testimony.
A witness may not testify that something smelled like marijuana unless it is established that the witness, from prior experience, knows what marijuana smells like.
Attention is called to the fact that the opinion of the lay witness may be only about something that the witness observed, heard, or smelled and not in answer to some hypothetical question pertaining to the witness's opinion of the matter.
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36. Commonly Encountered Opinions in Criminal Matters
State of Emotion
Speed of Vehicles
Distances
Sobriety or Intoxication
Age, Identity, and Physical Condition of a Person
Opinions on Miscellaneous Matters Such as Weight, Color, and Value
Character of a Person
Sanity
Opinions About Handwriting
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37. Terminology of the Lay Witness
Terminology alone does not convert a witness's admissible factual testimony into inadmissible opinion testimony.
In general conversation, people frequently start a statement with such phrases as ”In my opinion," ”It is my belief," or "I believe."
At first glance, this would imply that the person using such phrases is expressing a conclusion. In reality, the witness may be stating an actual fact.
When a witness uses such a phrase, the attorney conducting the examination may have to question the witness further to clarify that a fact is being stated and not a conclusion.
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38. Expert Witnesses
To assist the jury in its search for the truth and in the best interests of justice, the services of the expert witness often come into play.
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39. Expert Witnesses and the FRE
Under the FRE, an expert may testify if the scientific, technical, or other specialized knowledge he or she provides will assist the jury in understanding the evidence or in determining a material fact.
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40. Definition of Expert Witness
An expert witness is a person skilled in some art, trade, science, or profession.
An expert must have either knowledge, skill, experience, training, or education that is beyond and above that of the average person.
In this respect, therefore, an expert is in a position to assist the jurors because they do not have this background.
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41. Foundations and the Expert Witness
Before an expert may testify, the judge must first determine whether the witness is qualified as an expert in the particular field by knowledge, skill, experience, training, or education and that the testimony will help the jury arrive at the truth.
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42. What “makes” an expert?
It is possible to become an expert witness through self-instruction and experience.
Many of the crime-laboratory experts, better known as criminalists, fall within this category.
There are certain fields in which there are few courses available or in which there has been very little written.
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43. The Foundation for Expert Testimony
In order to utilize the testimony of an expert witness, three requirements must be established to the satisfaction of the trial judge.
First, the subject matter of the expert's proposed testimony must be relevant in the sense that it will assist the jury "to understand the evidence or to determine a fact in issue."
Second, the expert's field must be one requiring scientific, technical, or specialized knowledge.
Third, the witness must be shown to have the background necessary to qualify as an expert in the field.
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44. The Overruled Frye Test
Under the Frye test, only such expert testimony as was based on a scientific methodology "generally accepted as reliable in the relevant scientific community" was admissible.
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45. Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire v. Carmichael
The Daubert test requires the trial judge to determine that the subject of an expert's testimony has achieved the stature of "scientific knowledge" based on five factors.
In Kumho, the Court extended Daubert’s holding to “technical and specialized knowledge.”
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46. The Five Tests of Daubert-Kumho
(1) testing of the theory or technique
(2) peer review and publication of the theory or technique
(3) the particular scientific technique's known or potential rate of error
(4) The existence and maintenance of standards controlling the technique’s operation
(5) the theory or technique's "general acceptance"
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47. The Criminalist or the Forensic Specialist
A criminalist is a specialist in the application of science to crime and the law.
When the criminalist makes a bullet comparison or compares a latent fingerprint with a suspect's, the expert's opinion is necessary in the trial since the average person is unable to analyze such findings without assistance.
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48. Qualifying the Expert
Therefore, if the criminalist has had formal education in ballistics and fingerprint analysis, this information would be elicited first by the prosecutor on direct examination.
However, even if the witness has had no formal education, the prosecutor can qualify the criminalist as an expert by eliciting information about the witness's special training and experience.
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49. Qualifying the Expert: Voir Dire
The qualification of an expert witness places a burden upon the side producing the expert witness to prove qualification.
In the typical criminal case, the qualification process involves preliminary questions asked of the witness about education, experience, training and work in order to establish the witness's basic qualifications.
In addition, the attorney will want to qualify the witness as persuasively as possible by going beyond the essential qualifications in order to give the witness as much stature as possible in the eyes of the jury.
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50. The Final Arbiter—The Judge
The final determination whether a person qualifies as an expert witness or not is made by the trial judge, and unless the decision is beyond all reason, it will not be overruled on appeal.
Once the witness is accepted by the judge as an expert witness, the weight given to the testimony is determined by the jury.
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51. Testimony of the Expert Witness
The opinions and conclusions of the expert witness may be based upon information gained in one of three ways.
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52. The First Way
First, specific information possessed by the expert, gained through examination of a particular piece of evidence, may be the basis of her opinion or conclusion.
Such opinion testimony may be elicited simply by asking the expert what conclusions were reached after examining the evidence.
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53. The Second Way
Second, the expert may rely upon data supplied from another source in any form, as long as it is within the usual practice in the field to rely on such data.
Moreover, under FRE 703, the facts or data upon which the expert bases an opinion need not be admissible at trial, provided that such data or facts are of a type reasonably relied upon by experts in the particular field.
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54. Finally, the Third Way
Third, the expert may be presented with a set of hypothetical facts from which the witness is asked to draw conclusions.
This type of presentation is not used frequently in criminal cases.
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55. Experts and the Use of Hypothetical Questions
Although hypothetical questions have historically been criticized “as encouraging partisan bias . . .” and as “complex and time consuming,” the FRE continues to allow the use of hypothetical questions.
It is within the discretion of the trial judge whether to allow such questions.
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56. How Hypothetical Questions Work
An expert may be a witness even though he or she has not examined any evidence and has no knowledge, either directly or indirectly, about the case.
Instead, a set of hypothetical facts, data, or opinions that have some relation to the matter at issue will be given to the expert, who will then be asked for an opinion, based on his or her experience and knowledge, of what would happen given a set of circumstances.
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57. Kinds of Expert Witnesses
Medical Examiner or Coroner
Document Examiner
Fingerprint Expert
Skid-mark Expert, Speed Expert, and Accident Reconstructionist
Bookmaking, Narcotics, and Other Specific Types of Crimes Experts
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58. Kinds of Experts Criminalist or Forensic Scientist DNA Expert
Footprint Expert
Psychologist and Psychiatrist
Polygraph Examiner
Voiceprint Expert
Photographer
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59. Photographers
Except for certain scientific photographs, such as the spectrograph, micrograph, or x-ray, a photographer does not have to be an expert in the field of photography to have photographs admitted in evidence.
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60. Voiceprint Expert
Individuals have been accepted by the courts as experts in the method of voice identification known as voiceprints.
This method of voice identification consists of identifying or eliminating an unknown voice among several known by both listening to the voices and visually inspecting a spectrogram.
Scientifically described, acoustical spectrography is a branch of science that consists of composing the voice or sound into harmonic components and obtaining a visual pattern of the sound. This pattern is called a spectrogram.
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61. Polygraph Examiners
Polygraph experts allege that the polygraph is now beyond the experimental stage and is a recognized scientific instrument capable of detecting truthfulness and falsehood.
Although the courts have agreed that there has been substantial progress in improving the equipment and the operator techniques used in administering polygraph tests, very few courts will allow evidence of polygraph results to be admitted for any purpose.
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62. Psychologists and Psychiatrists
It is recognized that doctors specializing in psychiatry or psychology may state their opinion on the sanity of a person, but a perplexing problem arises as to whether a psychologist or psychiatrist may state an opinion on the sanity issue.
It is known that sanity is a matter of mental illness, thus a psychologist or psychiatrist who is trained and experienced in mental illnesses may qualify as an expert on mental illness and express an opinion on the sanity of a person.
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63. Footprint Experts
Footprints are admitted in evidence when their similarity to the shoes worn by a defendant justifies an inference that the prints were made by his or her shoes.
Often there is not much that science can add to a comparison of a cast or photograph made of a footprint found at a crime scene with the shoe of a suspect.
Thus, similarities in any peculiar markings between the cast or photograph and the shoe, as well as a comparison of the size, may often be made by the jury with as much proficiency as an expert witness.
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64. DNA Experts
The area of DNA evidence requires the assistance of highly-educated and trained experts.
Use of DNA evidence requires scientific knowledge, and therefore it would be impossible for an officer or a person, by way of training or experience only, to give an opinion with respect to such evidence.
It is necessary to have experts educated in the fields of genetics, biology, chemistry and other sciences to testify as DNA experts concerning such evidence. Usually scientists, those with advanced degrees in the sciences, will be required to testify, as this lends more credibility to their testimony in the eyes of the jury.
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65. Criminalist or Forensic Scientist
A few of the more commonly encountered ones are in the fields of:
ballistics
spectroscopic examinations
the examination of hairs and fibers, soils
toxicology
glass and glass fractures
blood and other body fluids
paints and chemicals
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66. Bookmaking Experts
Officers who have had extensive experience in working on particular types of crimes may become qualified as crimes experts with respect to those particular crimes.
For example, officers who work on bookmaking cases may become qualified as experts in what is considered to be material and paraphernalia used by bookmakers.
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67. Narcotics and Other Specific Types of Crimes Experts
Officers experienced in drug investigations may qualify to testify on drug users' methods of taking drugs.
They may also express their opinion about scars that they believe to have been made by injections or whether certain paraphernalia found at a crime scene were used by those engaged in the use or sale of narcotics.
The narcotic content of a pill or powder, however, would have to be determined by a person skilled in the field of chemistry.
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68. Skid-Mark Expert, Speed Expert, and Accident Reconstructionist
Serious motor vehicle accidents are a fact of life in all societies. In many instances, there are few, if any, eyewitnesses to automobile accidents, so that determination of the speed of the vehicles involved in accidents is not easily made, yet the speed is often an important factor of a case.
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69. Fingerprint Expert
The services of the fingerprint expert come into the picture when it is necessary to make a comparison between a latent fingerprint at a crime scene and the prints of a known suspect to determine whether the latent print is that of the suspect.
If an identification is made, the examiner will in most instances be called as a witness to prove the basis upon which an identification was made.
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70. Medical Examiner or Coroner
In homicide cases, the cause of death must be established. This is invariably done by the medical examiner or coroner.
The examiner will be called as an expert witness by the prosecution to give an opinion of the cause of death as a result of an examination of the body.
It is only after the coroner or medical examiner has made a complete examination of the body that he or she can conclude that the death was due to stabbing and not to a heart attack, or that a death was due to strangulation and not to accidental drowning.
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71. Document Examiner
A document examiner is usually skilled in making comparisons of handwritten documents and documents produced by all other means.
Such a person would be able to qualify as a handwriting expert and an expert in the field of document examination generally.
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72. The Handwriting Expert
The handwriting expert is seldom acquainted with the person whose writing he or she examines. Instead, the expert's examination is purely a comparison of two or more writings.
The expert may compare two checks in an effort to determine whether they were written by the same individual.
Or the expert may have a sample of the known handwriting of a person to compare to a questioned check or document in an effort to form an opinion whether the questioned document was written by the person who gave the known handwriting sample.
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73. Refreshing Recollection or Memory
If a witness, whether lay or expert, is incapable of testifying for the simple reason that his or her memory has failed, an attorney may refresh the witness's memory.
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74. Refreshing Recollection & the FRE
FRE 612 deals only with the use of a writing to refresh memory.
FRE 611(c) allows for the use of leading questions:
“As discussed earlier, leading questions are permitted on direct examination when necessary to develop the witness's testimony and are ordinarily permitted on cross-examination. Accordingly, refreshing recollection of a witness may occur either upon direct examination or cross-examination.”
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75. What May Be Used to Refresh Recollection
notes
memoranda
reports
photographs
newspaper articles
objects
song recordings
aromas
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76. Past Recollection Recorded
A common situation at trial, especially for witnesses who testify about matters recorded in extensive reports or who testify often, is that the witness's memory cannot be refreshed as previously described.
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77. Technical Aspects to Past Recollection Recorded
There are Six technical (legal) aspects to the matter of past recollection recorded.
First, before the writing may be used as past recollection recorded, the witness must be shown to have exhausted present recollection by failing to have recollection refreshed.
Second, the writing must have been prepared by the witness, at the witness's direction, or adopted by the witness.
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78. Technical Aspects to Past Recollection Recorded
Third, the witness must be in a position to swear that, at one time, the witness had knowledge of the contents and that the contents were true and correct.
Fourth, the evidence in the form of the writing is hearsay.
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79. Technical Aspects to Past Recollection Recorded
Fifth, the evidence is admissible hearsay because there is an exception to the hearsay rule for past recollection recorded.
Finally, the evidence, though admissible, may only be read to the jury; the writing is not admissible unless offered by the opponent.
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80. Investigative Report as a Means of Refreshing Recollection and Past Recollection Recorded
An officer's investigative report, much like the officer's notebook, may be used to refresh the memory of the officer while he or she is testifying as a witness.
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81. The Report: Means of Refreshing Recollection & Past Recollection Recorded
The report need not have been prepared by the officer or at the officer's direction for purposes of refreshing his or her memory. Accordingly, the report could be one prepared by a police stenographer as dictated by the officer or the report could be one prepared by another officer. Additionally, the report need not have been made at or near the time of the events that are reported.
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