1. AJ 104 Chapter 5 Witnesses

2. 5 Issues Related to a Trial Witness 1. Who is competent to testify 2. How the credibility of a witness is attacked 3. What can be done if a witness has a faulty memory 4. What a lay person is allowed to testify about 5. How and when expert witnesses are used

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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:

9. 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

10. 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

11. 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…

12. 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.

13. 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.

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

15. 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……..”

16. 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.

17. 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.

18. 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

19. 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

20. 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

21. Unavailable Witnesses Death Relocation Hiding Former testimony (under oath) can be introduced at trial if the witness is not available.

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

23. 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

24. 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.

25. 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

26. Uses of Expert Testimony Insanity ? Ballistics ? Blood and Tissue Matching ? Unlike lay witnesses, expert witnesses may express professional opinions.