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AJ 104 Chapter 5

AJ 104 Chapter 5. Witnesses. 5 Issues Related to a Trial Witness. Who is competent to testify How the credibility of a witness is attacked What can be done if a witness has a faulty memory What a lay person is allowed to testify about How and when expert witnesses are used.

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AJ 104 Chapter 5

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  1. AJ 104 Chapter 5 Witnesses

  2. 5 Issues Related to a Trial Witness • Who is competent to testify • How the credibility of a witness is attacked • What can be done if a witness has a faulty memory • What a lay person is allowed to testify about • 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: • Rationally based on the perception of the witness • 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.

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