Transcript AJ 104 Chapter 5 - Rio Hondo College

AJ 104 Chapter 5
Witnesses
5 Issues Related to a Trial
Witness
1.
2.
3.
4.
5.
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
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
Duty to Tell The Truth

The truth, the whole truth, and nothing
but the truth
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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
Duty to Tell The Truth

Exceptions

Children
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Senility & Mental Illness
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Cannot distinguish fact from fantasy
Inability to tell fact from fiction
Hypnosis
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Some courts ruled that witnesses cannot testify
about things under hypnosis
Ability to Narrate
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To be a witness, you must be able to
communicate with the judge and jury
about the events in question
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Must be able to understand questions
Very young, Mentally challenged
Language Barriers/Foreign Language
Hearing Impaired
Procedure to Establish
Competency

If a witness’s competency is at issue a
hearing is held
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Prior to taking the witness stand
Questions will be asked to determine
competency. “Voir Dire”
Two issues are determined at the hearing
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The duty to tell the truth
The ability to narrate
Impeachment

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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:
Bias or Prejudice

If there is a bias or prejudice, it can be
inferred that they cannot testify
objectively.
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Friendship
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Hatred
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I would do whatever I could to help
I hope he gets what coming to him
Family Ties
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There’s nothing I wouldn’t do for my child
Bias or Prejudice
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Other Examples include:
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Racial Prejudice
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Financial Gain
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They “all” look/act/behave the same
Have you been compensated for damages
Motive
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If I testify, they won’t file charges
Other Grounds for
Impeachment
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Prior Felony Convictions
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Uncharged Crimes and Immoral Acts
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In some cases (rarely) judicial discretion
will allow felons to testify
Can be confusing & time consuming
Prior Inconsistent Statements

I said it then, but what I meant was…
Other Grounds for
Impeachment

Inability to observe – Physically/View
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My Cousin Vinny
Reputation

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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.
Rehabilitating a Witness
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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.
Rehabilitation

Three Common Approaches:
(Inconsistent Statements)
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Lying for a reason
Statement taken out of context
Introduce a statement before the
inconsistent statement
Rehabilitation Grounds
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Good Behavior
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Witness Currently Telling the Truth
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I did that in the past, but not anymore
I was afraid that why I lied…..
Lack of Impairment by Handicap
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Designed to show that handicap was not a
factor or grounds to impeach
“Even a deaf person can hear……..”
Rehabilitation Grounds
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Use of Expert Witness
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To confirm a piece of evidence crucial to
the case
Based on reputation
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Use other witnesses to convince the jury
that they are the most credible regarding
reputation.
Corroboration
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The credibility of a witness is stronger if
additional evidence can support the witness
testimony.
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Accomplice testimony (mandatory)
Corroboration is different from cumulative
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Corroborative confirms testimony by use of
another source
Cumulative repeats what was said.
Memory Failure
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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.
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Present Memory Refreshed Rule
Past Recollection Recorded
Exception
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Exception to the Hearsay Rule:
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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
Past Recollection Recorded
Exception
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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
Unavailable Witnesses
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Death
Relocation
Hiding
Former testimony (under oath) can be
introduced at trial if the witness is not
available.
Types of Witnesses

A witness, someone who observed
something

Two types of witnesses
1. Lay
2. Expert
Types of Witnesses

A lay witness is a person who observed an
event that is relevant to the case on trial
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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
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.
2.
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.
Expert Witness

In order to use an expert, a foundation must
be laid that establishes the following:
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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
Uses of Expert Testimony
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Insanity
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Ballistics
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?
Blood and Tissue Matching
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?
?
Unlike lay witnesses, expert witnesses
may express professional opinions.