“ Copyright © Allyn & Bacon 2008 Criminal Evidence Chapter Nine: Examination of Witnesses This...

“Copyright © Allyn & Bacon 2008 “Copyright © Allyn & Bacon 2008

Criminal EvidenceCriminal Evidence

Chapter Nine: Chapter Nine: Examination of Witnesses

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Marjie BritzMarjie Britz


Types of WitnessesTypes of Witnesses

Lay WitnessesLay Witnesses: Individuals privy to an : Individuals privy to an event relevant to the issue at handevent relevant to the issue at hand testimony is generally limited to real evidence testimony is generally limited to real evidence

(i.e. something observed or experienced (i.e. something observed or experienced through one of the five sense) involving the through one of the five sense) involving the facts of the casefacts of the case

some opinion evidence is admissiblesome opinion evidence is admissible



Expert WitnessesExpert Witnesses: Those individuals called : Those individuals called to testify about a relevant event based on to testify about a relevant event based on his/her special knowledge, education or his/her special knowledge, education or trainingtraining allowed when evidence is beyond the allowed when evidence is beyond the

understanding of the average jurorunderstanding of the average juror must be competentmust be competent



Standard for the introduction of scientific Standard for the introduction of scientific or technical evidenceor technical evidence stems from two stems from two primary sources: case and statutory lawprimary sources: case and statutory law

Factors in considering the standardFactors in considering the standard 1. Whether the scientific theory or 1. Whether the scientific theory or

technique can be and has been “tested”technique can be and has been “tested” 2. Whether it has been subject to 2. Whether it has been subject to

publication and/or “peer review”publication and/or “peer review”



3. The known or potential “rate of error”;3. The known or potential “rate of error”; 4. The existence and maintenance of 4. The existence and maintenance of

“standards” controlling the technique's “standards” controlling the technique's operationoperation

5. “General acceptance in the scientific 5. “General acceptance in the scientific community”community”


Types of Witnesses – cont.Types of Witnesses – cont. Experts are examined (Experts are examined (Voir direVoir dire) to ) to

ensure: ensure: their testimony is necessary for clarification to their testimony is necessary for clarification to

the jurythe jury they possess the requisite credentials and they possess the requisite credentials and

qualificationsqualifications the scope of their testimony is within the the scope of their testimony is within the

parameters of that which the court is willing to parameters of that which the court is willing to accept as scientifically or technologically accept as scientifically or technologically sound sound


Examination of WitnessesExamination of Witnesses

Direct ExaminationDirect Examination of a witness occurs of a witness occurs when a witness is questioned by the side when a witness is questioned by the side which called them to testifywhich called them to testify

Cross ExaminationCross Examination is conducted by is conducted by opposing counsel at the conclusion of opposing counsel at the conclusion of direct examinationdirect examination Can include Can include leading questions leading questions


Examination of WitnessesExamination of Witnesses The demonstration of the veracity of a The demonstration of the veracity of a

particular witness (i.e. rehabilitationparticular witness (i.e. rehabilitation)) is is often attempted immediately after cross-often attempted immediately after cross-examination during a period known as examination during a period known as RedirectRedirect

Recross-examination Recross-examination immediately follows immediately follows redirect, and is limited to those areas redirect, and is limited to those areas addressed therein addressed therein


ObjectionsObjections

3 general types of objections:3 general types of objections:1.1. Substantive objections to questions Substantive objections to questions

posed posed 2.2. Substantive objections to the Substantive objections to the

question’s formquestion’s form3.3. Substantive objections to the answer Substantive objections to the answer

offeredoffered


Competency, Relevancy and Competency, Relevancy and MaterialityMateriality

As with all evidence, witness testimony must As with all evidence, witness testimony must be competent, relevant, and material to the be competent, relevant, and material to the issue at handissue at hand

CompetencyCompetency::1.1. ability to independently recollect and ability to independently recollect and

communicate the events in questioncommunicate the events in question2.2. ability to determine fact from fictionability to determine fact from fiction3.3. appreciation of and adherence to the veracity appreciation of and adherence to the veracity

requirement safeguarded by the nature of the requirement safeguarded by the nature of the U.S. Constitution and the structure of the U.S. Constitution and the structure of the American judicial system American judicial system


Competency, Relevancy and Competency, Relevancy and MaterialityMateriality

RelevantRelevant evidence has tendency to make evidence has tendency to make the existence of a fact in question more the existence of a fact in question more or less probable than without the or less probable than without the introduction of such evidenceintroduction of such evidence

MaterialMaterial evidence has an affect on the evidence has an affect on the trialtrial


CorroborationCorroboration

Corroborating evidenceCorroborating evidence refers to refers to supplementary or supporting evidence supplementary or supporting evidence which tends to strengthen or confirm which tends to strengthen or confirm extant evidenceextant evidence

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