Witnesses and Testimony

1. Witnesses and Testimony

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

3. Witnesses and Oral Testimony • Most evidence in any trial is presented through the oral testimony of witnesses. • A witness is a person who has some knowledge about the facts of a case.

4. Witness Requirements • Before the witness takes the seat to testify, an oath is administered to the witness by the judge, court clerk, or some other officer of the court. • The oath consists of words to this effect: • "I do solemnly swear (or affirm) to tell the truth and nothing but the truth, so help me god" (the reference to god being deleted in the case of a person wishing to affirm, rather than swear).

5. Competency • Personal knowledge of pertinent facts. • Mental capacity – sufficient ability to understand the obligation of an oath. • Child – possess the capacity to understand questions and make intelligent answers; with an understanding of the duty to tell the truth. • Criminal conviction – does not disqualify a witness. • Religious belief – has no bearing on competency.

6. The Three Characteristicsof Witness Capacity • Although everyone is competent to testify, a person must possess three basic characteristics in order to be a witness: • The ability to perceive, • remember, and • to narrate in an understandable manner.

7. Witness Examination • The questioning of a witness by the side who calls the witness is known as direct examination. • Direct examination usually begins with asking the witness his/her name, address, and occupation. Even though this information may be well known to all in the courtroom, it is necessary for the court record of the case.

8. Witness Examination Direct Examination continued: • After these preliminary background questions are completed, the general questioning of the witness concerning the specific facts of the case begins. • During the direct examination, whether it be by the prosecution or the defense, the attorney must form the question in such a manner that the desired answer is not indicated. • (A leading question)

9. Cross-Examination • After the direct examination is completed, the opposing side has the right to cross-examine the witness. • The right of cross-examination is considered essential for the discovery of truth during a trial.

10. Impeachment • Bias or prejudice • Evidence regarding character • Convictions of certain crimes • Prior inconsistent statements • Defects of recollection and/or perception

11. Privileges • Relationship recognized by law, - i.e. attorney-client, husband-wife… • Society is benefited by the relationship. • Communication made because of relationship.

12. Judicial Notice • A judge may take judicial notice of facts of common knowledge. • Matters familiar to the majority of mankind or to those persons familiar with a particular matter in question.

13. LAWS: Law of the forum Federal Law Laws of other states Ordinances Regulations FACTS: Generall Knowledge matters. Historical facts Geographical facts Nature & Science Abbreviations & symbols. Judicial Notice (Examples)

14. Hearsay • A statement, other than by the declarant while testifying at a hearing, that is offered in evidence to prove the truth of the matter asserted.

15. Hearsay • Reasons for the Hearsay Rule: • Declarant not under oath. • Demeanor of person making statement unobserved. • Danger of inaccurate repetitions. • Declarant not cross-examined. • Hearsay Evidence is not admissible.(Exceptions)

16. Statements • Only evidence that is in the form of a statement not presently made in court can be hearsay. • If the evidence is in any other form, such as a witness's present testimony in court, or a tangible object, then there is no application of the hearsay rule to the evidence.

17. Statements A statement is not limited to spoken words or conduct. A statement may also be information written or typed by the declarant, such as information in letters, notes, or other documents.

18. Hearsay Exceptions • (1) dying declarations, • (2) spontaneous declarations, • (3) state of mind, • (4) statements for purposes of medical diagnosis or treatment, • (5) former testimony,

19. Hearsay Exceptions • (6) business records, • (7) family history or pedigree, • (8) past memory recorded, • (9) prior statements of witnesses, • (10) admissions and confessions, & • (11) declarations against interest.

20. Hearsay Exemptions • If a statement is logically relevant only if the content of it is true, then it is offered for the truth of the matter asserted, is hearsay, and is only admissible if it falls within an exemption or exception.

21. Admissions & Confessions • Admission: Statement by an accused before trial that is not an acknowledgement of guilt but links the accused to the crime. • Confession: Statement is a conscious acknowledgment of guilt (all the elements).

22. Immunity • Rules that allow a witness to be spared from prosecution if the witness furnishes facts that might otherwise incriminate himself or herself.

23. Two Types of Immunity • Use and derivative use immunity • Transactional immunity

24. Use Immunity • Use immunity prohibits the use of testimony that is specifically immunized & any evidence derived from it in a prosecution of the witness.

25. Transactional Immunity • Transactional immunity protects the immunized person from prosecution for all activity the witness mentions in his or her immunized testimony.

26. Transactional Immunity - Transactional immunity is sometimes referred to as “blanket immunity.”