Witnesses— Lay and Expert

1. 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.

2. A Law Enforcement Officer as a Witness • A law enforcement officer who is called as a witness usually has gained knowledge through individual investigation of a case or a certain portion of the case. • Most often, is a Lay Witness.

3. General Information on Witnesses • Witnesses are called upon during the course of a trial to relate their particular knowledge. • Witnesses are seldom surprised when they are called to testify, especially in criminal cases, because preceding most trials, law enforcement officers conduct extensive investigations and usually advise those they interview that they may be called.

4. The Reluctant Witness • Although many people willingly serve as witnesses, others, for a variety of reasons, serve reluctantly: • Some wish not to become involved; some fear reprisal; others fear cross-examination. • Still others may wish to cooperate but are reluctant to lose time at work.

5. 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.

6. 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.

7. The Confrontation Clause

8. 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.

9. Attendance of Witnesses:In Criminal Cases • In criminal cases, the subpoena sets forth the name of the defendant to be tried, the name of the person to be the witness, and orders the person to appear at a specific time and place and to remain in attendance until released.

10. 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.

11. 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

12. Available Court Sanctions • There can be severe consequences for failing to honor a subpoena or subpoena ducestecum. • Criminal Contempt. Sanctions for criminal contempt of court can be a monetary fine, imprisonment, or both. • If the court chooses to imprison the person, the imprisonment will be for a fixed period of time and may continue even if the person later submits to the court's authority. • Should a person answer a subpoena but intentionally refuse to give testimony or produce the thing ordered, the court may find the witness in Civil Contempt. • The court may order the uncooperative witness placed in jail until the witness complies with the orders of the court.

13. Methods of Subpoenaing Witnesses • In most jurisdictions (California included), 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.

14. 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.. • Registered Process Servers

15. Proper Service • The service of the subpoena consists of personally handing the subpoena to the person. In some jurisdictions, sending the subpoenas by certified mail or leaving the subpoena at a witness's home or place of work may be acceptable as proper service.

16. The Civic Duty to Testify • It is the duty of all persons to testify when needed. Organized society is based on the civic contribution of its members. • It is also considered to be an inherent right of our courts to compel a person to appear as witness. • Few circumstances will excuse anyone from attendance as a witness, because the needs of the criminal justice system must be met and the convenience of the witness is of little consequence.

17. 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.

18. 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. • Witnesses may be entitled to compensation for appearing.

19. 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.

20. The Rule of WitnessesJudicial Admonishment • Judges will also direct witnesses not to discuss their testimony among themselves while waiting to appear in the courtroom. • Of course, this does not keep witnesses from talking.

21. Two Categories of Witnesses • Witnesses have been classified into two categories: • (1) the lay or ordinary witness and • (2) the expert witness.

22. 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.

23. Methods ofInterrogating 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.

24. 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 : • Suggestive 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.

25. 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; and • 5) when laying a necessary foundation under certain circumstances.

26. 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, and it is undoubtedly easier for the jury to follow evidence presented in this manner.

27. Caution!The Narrative Questioning • The witness, not being fully informed on the rules of evidence, may testify concerning many things that are incompetent, irrelevant, or inadmissible, bringing objections by the opposing side and requests to strike the testimony from the record. • The judge must then admonish the jury to disregard the testimony. • While telling his or her story, the witness may go into matters the attorney did not intend to include at that particular time. • Or the witness may include irrelevant material, which would result in extensive cross-examination and could be detrimental to the case.

28. 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 it the subject has been brought up during direct examination.

29. The Benefits of theCross-Examination • Cross-examination is an indispensable method of either eliciting testimony favorable to the examiner's case or impeaching the witness's testimony. • In eliciting favorable testimony, an attorney on cross-examination might simply seek to have the witness testify to disputed facts favorable to the examiner's case. • The attorney could have the witness repeat favorable testimony already stated on direct examination. • The cross-examiner might try to get the witness to qualify or explain damaging testimony given during direct examination.

30. Pitfalls & Concerns on Cross-Examination • Usually the witness under cross-examination is an adverse witness (one aligned with the other side), who may, because of a conscious or unconscious hostility engendered by the cross-examination, take advantage of the situation and try to volunteer additional information to the advantage of the opposing side. • This is an ever-present hazard of cross-examination, both for the witness and the cross-examiner.

31. Cross-Examination’sPrimary Benefit: Impeachment • The most important purpose of cross-examination is to persuade the jury to disbelieve the testimony of a witness, to impeach the witness.

32. 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; and • (5) by proof of lack of or diminished witness capacity.

33. Methods of ImpeachmentContradiction • Impeachment by contradiction consists of asking the witness about facts that are directly in opposition to those testified to on direct examination.

34. Crimes of Bad Characterfor Truthfulness • The crimes that can be shown to impeach for bad character for truthfulness are: • Any crime punishable by imprisonment in excess of one year (Felony). • A crime involving dishonesty; includes perjury, fraud, or embezzlement.

35. Impeachment byBad 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.

36. 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.

37. What is acontradictory statement? • If a witness has made contradictory statements, the jury might think that the witness is either mistaken or lying, or has changed his or her mind for some other reason. • The only requirement in most states for the cross-examiner to prove the content of a prior inconsistent statement is that the witness be given an opportunity to explain or deny the statement and the opposing party be afforded an opportunity to interrogate the witness about the statement.

38. 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.

39. Impeach a Witness by Showing a Lack of Capacity or Impaired Capacity • Witness capacity consists of • perception, • memory, • narration, • sincerity. • Poor eyesight. poor hearing, memory, or ability to speak effectively are all matters that can be attacked in many persons.

40. The Law Enforcement Officeras a Witness • For the law enforcement officer as a witness, the cross-examination can become very unpleasant. This is probably due to the fact that the officer is one of the more damaging witnesses insofar as the defendant's case is concerned. Some defense attorneys may attempt to confuse, belittle, or embarrass an officer on the stand in the effort to diminish the officer’s testimony.

41. Witness Must Answer Questions • A witness must answer all questions the judge permits, whether the questions are on direct examination or cross-examination.

42. The Reluctant Witness • Sometimes the witness is reluctant to answer a question that may be adverse to the side for which the witness has been called, particularly during cross-examination. • To make matters worse, a witness subject to cross-examination may not be given a chance to explain his or her answer. However, the witness may be given the opportunity to explain the answer on re-direct examination. • The one exception to the requirement that a witness must answer all questions is with respect to a self-incriminating question.

43. Guarantee of the Fifth Amendment: A Well-Worn Right • The Guarantee of the Fifth Amendment to the Constitution of the United States and the provisions of the constitutions of the various states give to a witness, in addition to the defendant, the right against self-incrimination.

44. An Unresponsive Answer • When an answer given to a question is not responsive, the unresponsive answer may be stricken from the record. An unresponsive answer is one that does not address the subject matter of the question that was asked or goes beyond the scope of the question and relates to some other matter.

45. 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 the witness may guilty of perjury. • In California, Perjury a felony.

46. Opinion Testimonyof 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."

47. Legally speaking, what is an opinion? • An opinion has been defined as an inference or conclusion drawn from a fact known or something observed. As it relates to the testimony of a lay witness, it would be an inference drawn from something the witness observed.

48. 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.

49. identity handwriting quantity value weight measure time distance velocity form size intoxication veracity Proper Areas of Opinion Testimony

50. age • strength • heat • cold • sickness • health • disposition • temper • anger • fear • excitement • general character Additional Areas of Opinion Testimony: We all have some!