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Chapter 5Chapter 5

Witnesses and the Testimony Witnesses and the Testimony of Witnessesof Witnesses

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QUALIFICATIONS NECESSARY TO QUALIFICATIONS NECESSARY TO BE A WITNESSBE A WITNESS

IN ORDER TO BE A WITNESS, A PERSON MUST IN ORDER TO BE A WITNESS, A PERSON MUST SATISFY THE FOLLOWING REQUIREMENTS:SATISFY THE FOLLOWING REQUIREMENTS: REQUIREMENT OF PERSONAL KNOWLEDGE THE REQUIREMENT OF PERSONAL KNOWLEDGE THE

WITNESS MUST HAVE SOME PERSONAL WITNESS MUST HAVE SOME PERSONAL KNOWLEDGE OF THE MATTER BEFORE THE COURTKNOWLEDGE OF THE MATTER BEFORE THE COURT

REQUIREMENT THAT EVERY WITNESS DECLARE HE REQUIREMENT THAT EVERY WITNESS DECLARE HE WILL TESTIFY TRUTHFULLY MOST WITNESSES WILL TESTIFY TRUTHFULLY MOST WITNESSES WILL TAKE AN OATH SWEARING THAT THEY WILL WILL TAKE AN OATH SWEARING THAT THEY WILL TELL THE TRUTHTELL THE TRUTH

REQUIREMENT OF COMPETENCY DEPENDING ON REQUIREMENT OF COMPETENCY DEPENDING ON THE WITNESS’ CAPACITY TO OBSERVE, THE WITNESS’ CAPACITY TO OBSERVE, REMEMBER AND NARRATE AS WELL AS AN REMEMBER AND NARRATE AS WELL AS AN UNDERSTANDING OF THE DUTY TO TELL THE UNDERSTANDING OF THE DUTY TO TELL THE TRUTHTRUTH

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THE GENERAL PRESUMPTION THAT THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE ADULTS ARE COMPETENT TO BE

WITNESSESWITNESSES

THE LAW PRESUMES THAT ADULTS ARE THE LAW PRESUMES THAT ADULTS ARE COMPETENTCOMPETENT

THE COMPETENCY OF A WITNESS MAY BE THE COMPETENCY OF A WITNESS MAY BE CHALLENGED, BUT THE OPPOSING ATTORNEY CHALLENGED, BUT THE OPPOSING ATTORNEY WOULD HAVE THE BURDEN OF SHOWING THAT WOULD HAVE THE BURDEN OF SHOWING THAT THE WITNESS LACKED ONE OR MORE OF THE THE WITNESS LACKED ONE OR MORE OF THE REQUIRED QUALIFICATIONSREQUIRED QUALIFICATIONS

COMPETENCY OF WITNESSES CAN RELATE BOTH COMPETENCY OF WITNESSES CAN RELATE BOTH TO THE ABILITY OF THE WITNESSES TO TESTIFY TO THE ABILITY OF THE WITNESSES TO TESTIFY ABOUT A PARTICULAR EVENT THEY WITNESSED ABOUT A PARTICULAR EVENT THEY WITNESSED AND ALSO TO CIRCUMSTANCES THAT CAST AND ALSO TO CIRCUMSTANCES THAT CAST DOUBT ON THE CREDIBILITY OF THAT DOUBT ON THE CREDIBILITY OF THAT TESTIMONYTESTIMONY

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THE GENERAL PRESUMPTION THAT ADULTS THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE WITNESSES (Cont.)ARE COMPETENT TO BE WITNESSES (Cont.)

A WITNESS WILL NOT NORMALLY BE JUDGED A WITNESS WILL NOT NORMALLY BE JUDGED INCOMPETENT BASED ON CIRCUMSTANCES THAT INCOMPETENT BASED ON CIRCUMSTANCES THAT AFFECT ONLY THE CREDIBILITY OF THE WITNESSAFFECT ONLY THE CREDIBILITY OF THE WITNESS

IN CASES WHERE THE PROSECUTOR PRESENTS IN CASES WHERE THE PROSECUTOR PRESENTS TESTIMONY BY PAID INFORMANTS, THE FACT THAT TESTIMONY BY PAID INFORMANTS, THE FACT THAT THE INFORMANT WAS PAID TO TESTIFY DOES NOT THE INFORMANT WAS PAID TO TESTIFY DOES NOT USUALLY RENDER THE WITNESS INCOMPETENTUSUALLY RENDER THE WITNESS INCOMPETENT

THE JURY CAN DECIDE WHAT EFFECT, IF ANY, THE THE JURY CAN DECIDE WHAT EFFECT, IF ANY, THE CIRCUMSTANCES SHOULD HAVE ON THE CIRCUMSTANCES SHOULD HAVE ON THE CREDIBILITY OF THE TESTIMONY GIVEN BY THE CREDIBILITY OF THE TESTIMONY GIVEN BY THE WITNESSWITNESS

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CHILDREN AS WITNESSESCHILDREN AS WITNESSES

IF A YOUNG CHILD IS CALLED AS A WITNESS, IF A YOUNG CHILD IS CALLED AS A WITNESS, THE TRIAL JUDGE WILL FIRST QUESTION THE TRIAL JUDGE WILL FIRST QUESTION (Questioning the potential jurors is called (Questioning the potential jurors is called VOIR DIREVOIR DIRE) THE CHILD TO DETERMINE IF THE ) THE CHILD TO DETERMINE IF THE CHILD IS COMPETENT TO TESTIFYCHILD IS COMPETENT TO TESTIFY

A RULING IS MADE BY THE TRIAL JUDGE AS TO A RULING IS MADE BY THE TRIAL JUDGE AS TO THE CHILD’S COMPETENCE AS A WITNESSTHE CHILD’S COMPETENCE AS A WITNESS

ALL STATES HAVE STATUTES THAT ENABLE ALL STATES HAVE STATUTES THAT ENABLE CHILDREN AS YOUNG AS 3 YEARS OF AGE TO CHILDREN AS YOUNG AS 3 YEARS OF AGE TO APPEAR AS WITNESSESAPPEAR AS WITNESSES

TO PROTECT CHILDREN AND MINIMIZE TO PROTECT CHILDREN AND MINIMIZE EMOTIONAL DAMAGE, STATES HAVE ENACTED EMOTIONAL DAMAGE, STATES HAVE ENACTED STATUTES TO HELP CHILDREN IN THE STATUTES TO HELP CHILDREN IN THE FOLLOWING WAYS:FOLLOWING WAYS:

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TESTIMONY BY CLOSED-CIRCUIT TELEVISIONTESTIMONY BY CLOSED-CIRCUIT TELEVISION VIDEOTAPED TESTIMONYVIDEOTAPED TESTIMONY STATUTES MAKING IT EASIER FOR CHILDREN TO BE STATUTES MAKING IT EASIER FOR CHILDREN TO BE

FOUND COMPETENT TO TESTIFYFOUND COMPETENT TO TESTIFY SPECIAL HEARSAY EXCEPTIONS FOR CHILD VICTIMS SPECIAL HEARSAY EXCEPTIONS FOR CHILD VICTIMS

AND CHILD WITNESSESAND CHILD WITNESSES USE OF ANATOMICAL DOLLS IN CRIMINAL CHILD ABUSE USE OF ANATOMICAL DOLLS IN CRIMINAL CHILD ABUSE

CASESCASES CLOSING THE COURTROOM TO ALL BUT NECESSARY CLOSING THE COURTROOM TO ALL BUT NECESSARY

PARTIESPARTIES USE OF LEADING QUESTIONS WITH CHILD WITNESSESUSE OF LEADING QUESTIONS WITH CHILD WITNESSES LIMITING THE LENGTH OF TIME A CHILD IS ON THE LIMITING THE LENGTH OF TIME A CHILD IS ON THE

WITNESS STANDWITNESS STAND LIMITING THE NUMBER OF INTERVIEWS WITH CHILD LIMITING THE NUMBER OF INTERVIEWS WITH CHILD

VICTIMSVICTIMS STATUTES REQUIRING SPEEDY HANDLING OF CASES STATUTES REQUIRING SPEEDY HANDLING OF CASES

INVOLVING CHILD VICTIMSINVOLVING CHILD VICTIMS

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VOIR DIREVOIR DIRE

THE PHRASE THE PHRASE VOIR DIREVOIR DIRE (FRENCH FOR “TO (FRENCH FOR “TO SPEAK THE TRUTH”) IS THE TERM USED TO SPEAK THE TRUTH”) IS THE TERM USED TO DESCRIBE THE PRELIMINARY EXAMINATION DESCRIBE THE PRELIMINARY EXAMINATION USED TO DETERMINE WHETHER A WITNESS USED TO DETERMINE WHETHER A WITNESS OR JUROR IS COMPETENT OR QUALIFIEDOR JUROR IS COMPETENT OR QUALIFIED

THE VOIR DIRE CONSIST OF QUESTIONS TO THE VOIR DIRE CONSIST OF QUESTIONS TO DETERMINE WHETHER THEY ARE COMPETENT DETERMINE WHETHER THEY ARE COMPETENT AND WHAT THEIR INTERESTS AND BIASES AREAND WHAT THEIR INTERESTS AND BIASES ARE

QUESTIONING DURING VOIR DIRE IS USUALLY QUESTIONING DURING VOIR DIRE IS USUALLY DONE BY THE TRIAL JUDGE BUT DEPENDING DONE BY THE TRIAL JUDGE BUT DEPENDING ON THE LAW OR PRACTICE WITHIN THE ON THE LAW OR PRACTICE WITHIN THE STATE, THE QUESTIONING COULD BE DONE STATE, THE QUESTIONING COULD BE DONE BY THE ATTORNEYSBY THE ATTORNEYS

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CREDIBILITY OF WITNESSCREDIBILITY OF WITNESS

METHODS TO KEEP WITNESSES HONESTMETHODS TO KEEP WITNESSES HONEST WITNESSES MUST TAKE AN OATH OR WITNESSES MUST TAKE AN OATH OR

AFFIRMATION THAT THEY WILL TELL THE TRUTHAFFIRMATION THAT THEY WILL TELL THE TRUTH WITNESSES MUST BE PERSONALLY PRESENT AT WITNESSES MUST BE PERSONALLY PRESENT AT

THE TRIALTHE TRIAL WITNESSES ARE SUBJECT TO CROSS-WITNESSES ARE SUBJECT TO CROSS-

EXAMINATIONEXAMINATION WITNESSES THAT DO NOT TELL THE TRUTH RUN WITNESSES THAT DO NOT TELL THE TRUTH RUN

THE RISK OF BEING CHARGED WITH THE RISK OF BEING CHARGED WITH PERJURYPERJURY IF A WITNESS REFUSES TO TESTIFY OR REFUSES IF A WITNESS REFUSES TO TESTIFY OR REFUSES

TO ANSWER QUESTIONS THAT ARE NOT TO ANSWER QUESTIONS THAT ARE NOT PRIVILEGED, THEY COULD BE FOUND IN PRIVILEGED, THEY COULD BE FOUND IN CONTEMPT OF COURTCONTEMPT OF COURT AND PUNISHED AND PUNISHED

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CREDIBILITY AND THE WEIGHT OF CREDIBILITY AND THE WEIGHT OF EVIDENCEEVIDENCE

IT IS UP TO THE JUDGE OR JURY, AS THE TRIER OF FACT, TO IT IS UP TO THE JUDGE OR JURY, AS THE TRIER OF FACT, TO DETERMINE WHETHER STATEMENTS MADE BY WITNESSES DETERMINE WHETHER STATEMENTS MADE BY WITNESSES ARE TO BE BELIEVED AND WHAT WEIGHT TO GIVE THEMARE TO BE BELIEVED AND WHAT WEIGHT TO GIVE THEM

THE FOLLOWING FACTORS ARE CONSIDERED WHEN THE FOLLOWING FACTORS ARE CONSIDERED WHEN DETERMINING THE CREDIBILITY AND WEIGHT OF DETERMINING THE CREDIBILITY AND WEIGHT OF TESTIMONY FROM A WITNESS:TESTIMONY FROM A WITNESS: PERCEPTION - PERCEPTION - DID THE WITNESS HAVE THE DID THE WITNESS HAVE THE

OPPORTUNITY TO OBSERVE & PERCEIVE ACCURATELY?OPPORTUNITY TO OBSERVE & PERCEIVE ACCURATELY? MEMORYMEMORY - HAS THE WITNESS RETAINED AN ACCURATE - HAS THE WITNESS RETAINED AN ACCURATE

IMPRESSION OF WHAT HE/SHE SAW, HEARD, SMELLED IMPRESSION OF WHAT HE/SHE SAW, HEARD, SMELLED AND IS THE MEMORY OF THE EVENTS ACCURATE?AND IS THE MEMORY OF THE EVENTS ACCURATE?

NARRATION -NARRATION - DOES THE TESTIMONY OF THE WITNESS DOES THE TESTIMONY OF THE WITNESS AND THE LANGUAGE USED ACCURATELY DESCRIBE THE AND THE LANGUAGE USED ACCURATELY DESCRIBE THE EVENTS?EVENTS?

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CREDIBILITY AND THE WEIGHT OF EVIDENCE CREDIBILITY AND THE WEIGHT OF EVIDENCE (Cont.)(Cont.)

THE THE INCONTROVERTIBLE PHYSICAL FACTS INCONTROVERTIBLE PHYSICAL FACTS RULERULE (ALSO KNOWN AS THE PHYSICAL FACTS (ALSO KNOWN AS THE PHYSICAL FACTS RULE) HOLDS THAT THE FACT-FINDING BODY RULE) HOLDS THAT THE FACT-FINDING BODY WILL GIVE NO WEIGHT TO WITNESS WILL GIVE NO WEIGHT TO WITNESS STATEMENTS THAT ARE INHERENTLY STATEMENTS THAT ARE INHERENTLY INCREDIBLE, UNBELIEVABLE AND CONTRARY TO INCREDIBLE, UNBELIEVABLE AND CONTRARY TO PHYSICAL FACTS, KNOW PHYSICAL LAWS PHYSICAL FACTS, KNOW PHYSICAL LAWS GENERAL KNOWLEDGE OR HUMAN EXPERIENCEGENERAL KNOWLEDGE OR HUMAN EXPERIENCE

IN A JURY TRIAL, THE JURY IS THE SOLE JUDGE OF IN A JURY TRIAL, THE JURY IS THE SOLE JUDGE OF THE CREDIBILITY OF ALL WITNESSES, INCLUDING THE CREDIBILITY OF ALL WITNESSES, INCLUDING THE DEFENDANT IF HE TAKES THE WITNESS THE DEFENDANT IF HE TAKES THE WITNESS STANDSTAND

THE JURY EVALUATES THE WEIGHT AND THE JURY EVALUATES THE WEIGHT AND CREDIBILITY OF TESTIMONY FREE FROM THE CREDIBILITY OF TESTIMONY FREE FROM THE INFLUENCE OF THE TRIAL JUDGEINFLUENCE OF THE TRIAL JUDGE

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DEMEANOR AS EVIDENCE IN DEMEANOR AS EVIDENCE IN JUDGING WITNESSESJUDGING WITNESSES

NOT ONLY ARE THE WORDS OF A WITNESS NOT ONLY ARE THE WORDS OF A WITNESS EVIDENCE IN A TRIAL, BUT THE DEMEANOR OF EVIDENCE IN A TRIAL, BUT THE DEMEANOR OF THE WITNESS HAS BEEN HELD ALSO TO BE THE WITNESS HAS BEEN HELD ALSO TO BE EVIDENCE THAT MAY BE USED IN EVIDENCE THAT MAY BE USED IN DETERMINING CREDIBILITYDETERMINING CREDIBILITY

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CONSTITUTIONAL RIGHTS OF CONSTITUTIONAL RIGHTS OF DEFENDANTS REGARDING DEFENDANTS REGARDING

WITNESSESWITNESSES

THE RIGHT TO COMPEL THE ATTENDANCE OF THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSESWITNESSES A A SUBPOENASUBPOENA IS A COMMAND TO THE PERSON TO IS A COMMAND TO THE PERSON TO

WHOM IT IS DIRECTED TO APPEAR ON A SPECIFIED WHOM IT IS DIRECTED TO APPEAR ON A SPECIFIED DATE AT A GIVEN TIME AND PLACE FOR THE DATE AT A GIVEN TIME AND PLACE FOR THE PURPOSE OF TESTIFYINGPURPOSE OF TESTIFYING

A A SUBPOENA DUCES TECUMSUBPOENA DUCES TECUM COULD ALSO BE COULD ALSO BE ISSUED REQUIRING THE PERSON TO BRING ISSUED REQUIRING THE PERSON TO BRING DOCUMENTS OR OTHER MATERIALS THAT ARE DOCUMENTS OR OTHER MATERIALS THAT ARE EXPECTED TO BE USEFUL IN THE PROCEEDINGSEXPECTED TO BE USEFUL IN THE PROCEEDINGS

ONLY COMPETENT WITNESSES WHO HAVE A ONLY COMPETENT WITNESSES WHO HAVE A PERSONAL KNOWLEDGE OF FACTS RELEVANT TO PERSONAL KNOWLEDGE OF FACTS RELEVANT TO THE CASE MAY BE SUBPOENAEDTHE CASE MAY BE SUBPOENAED

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CONSTITUTIONAL RIGHTS OF DEFENDANTS CONSTITUTIONAL RIGHTS OF DEFENDANTS REGARDING WITNESSES (Cont.)REGARDING WITNESSES (Cont.)

THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSESWITNESSES THE WITNESS NOT ONLY TESTIFIES IN OPEN THE WITNESS NOT ONLY TESTIFIES IN OPEN

COURT IN THE PRESENCE OF THE ACCUSED COURT IN THE PRESENCE OF THE ACCUSED BUT IS ALSO SUBJECT TO CROSS-BUT IS ALSO SUBJECT TO CROSS-EXAMINATION BY THE OPPOSING PARTYEXAMINATION BY THE OPPOSING PARTY

CROSS-EXAMINATION CROSS-EXAMINATION IS CONSIDERED TO BE IS CONSIDERED TO BE ONE OF THE SAFEGUARDS OF THE ACCURACY ONE OF THE SAFEGUARDS OF THE ACCURACY AND COMPLETENESS OFAND COMPLETENESS OF TESTIMONY BY A TESTIMONY BY A WITNESSWITNESS

THE DEFENDANT’S RIGHT TO TESTIFY IN HIS OR HER THE DEFENDANT’S RIGHT TO TESTIFY IN HIS OR HER DEFENSEDEFENSE DEFENDANTS HAVE A RIGHT TO TESTIFY IN DEFENDANTS HAVE A RIGHT TO TESTIFY IN

THEIR OWN BEHALFTHEIR OWN BEHALF DEFENDANTS WHO TAKE THE WITNESS STAND DEFENDANTS WHO TAKE THE WITNESS STAND

TO TESTIFY IN THEIR BEHALF WAIVE THEIR TO TESTIFY IN THEIR BEHALF WAIVE THEIR RIGHT TO REMAIN SILENT AND MUST ANSWER RIGHT TO REMAIN SILENT AND MUST ANSWER QUESTIONS ON CROSS-EXAMINATIONQUESTIONS ON CROSS-EXAMINATION

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TYPES OF WITNESSES AND TYPES OF WITNESSES AND OPINION EVIDENCEOPINION EVIDENCE

ORDINARY WITNESSES AND EXPERT WITNESSESORDINARY WITNESSES AND EXPERT WITNESSES MOST WITNESSES ARE MOST WITNESSES ARE ORDINARY WITNESSESORDINARY WITNESSES WHO WHO

ARE CALLED TO TESTIFY ABOUT THE FIRST-HAND ARE CALLED TO TESTIFY ABOUT THE FIRST-HAND INFORMATION THEY HAVE REGARDING THE CASE INFORMATION THEY HAVE REGARDING THE CASE BEFORE THE COURTBEFORE THE COURT

THEIR TESTIMONY IS USUALLY LIMITED TO WHAT THEIR TESTIMONY IS USUALLY LIMITED TO WHAT THEY HAVE SEEN, HEARD (HEARSAY IS IN MOST THEY HAVE SEEN, HEARD (HEARSAY IS IN MOST INSTANCES EXCLUDED), SMELLED, FELT, AND ON INSTANCES EXCLUDED), SMELLED, FELT, AND ON RARE OCCASIONS, TASTEDRARE OCCASIONS, TASTED

LAW ENFORCEMENT OFFICERS APPEAR IN MOST LAW ENFORCEMENT OFFICERS APPEAR IN MOST CASES AS ORDINARY WITNESSES, ALTHOUGH SOME CASES AS ORDINARY WITNESSES, ALTHOUGH SOME OFFICERS ALSO APPEAR AS EXPERT WITNESSES OFFICERS ALSO APPEAR AS EXPERT WITNESSES WHEN THEY QUALIFY, TESTIFYING ABOUT WHEN THEY QUALIFY, TESTIFYING ABOUT FINGERPRINTING, TRAFFIC MATTERS, WEAPONS, ETC.FINGERPRINTING, TRAFFIC MATTERS, WEAPONS, ETC.

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TYPES OF WITNESSES AND OPINION EVIDENCE TYPES OF WITNESSES AND OPINION EVIDENCE (Cont.)(Cont.)

AN AN EXPERT WITNESSEXPERT WITNESS IS A PERSON WHO HAS HAD IS A PERSON WHO HAS HAD SPECIAL TRAINING, EDUCATION OR EXPERIENCE.SPECIAL TRAINING, EDUCATION OR EXPERIENCE.

DUE TO THIS EXPERIENCE AND BACKGROUND, THE DUE TO THIS EXPERIENCE AND BACKGROUND, THE EXPERT WITNESS MAY BE ABLE TO ASSIST THE JURY EXPERT WITNESS MAY BE ABLE TO ASSIST THE JURY AND THE COURT IN RESOLVING THE ISSUES AND THE COURT IN RESOLVING THE ISSUES BEFORE THEMBEFORE THEM

THREE QUESTIONS ARE PRESENTED TO A TRIAL THREE QUESTIONS ARE PRESENTED TO A TRIAL COURT WHEN ONE OF THE PARTIES SEEKS TO COURT WHEN ONE OF THE PARTIES SEEKS TO INTRODUCE AN EXPERT WITNESS:INTRODUCE AN EXPERT WITNESS:

IS THE SUBJECT ON WHICH THE EXPERT IS THE SUBJECT ON WHICH THE EXPERT WITNESS WILL TESTIFY ONE FOR WHICH WITNESS WILL TESTIFY ONE FOR WHICH THE COURT CAN RECEIVE THE OPINION OF THE COURT CAN RECEIVE THE OPINION OF AN EXPERT?AN EXPERT?

WHAT QUALIFICATIONS ARE NECESSARY TO WHAT QUALIFICATIONS ARE NECESSARY TO QUALIFY THE WITNESS AS AN EXPERT?QUALIFY THE WITNESS AS AN EXPERT?

DOES THE WITNESS MEET THESE DOES THE WITNESS MEET THESE QUALIFICATIONS?QUALIFICATIONS?

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TYPES OF WITNESSES AND OPINION EVIDENCE TYPES OF WITNESSES AND OPINION EVIDENCE (Cont.)(Cont.)

THE TRIAL JUDGE HAS TO DETERMINE THE TRIAL JUDGE HAS TO DETERMINE WHETHER THE EXPERT TESTIMONY IS WHETHER THE EXPERT TESTIMONY IS RELIABLE ENOUGH TO ADMIT INTO EVIDENCERELIABLE ENOUGH TO ADMIT INTO EVIDENCE

TO QUALIFY AS AN EXPERT IN SOME FIELDS TO QUALIFY AS AN EXPERT IN SOME FIELDS REQUIRES YEARS OF FORMAL EDUCATION, REQUIRES YEARS OF FORMAL EDUCATION, TRAINING, CERTIFICATION OR LICENSETRAINING, CERTIFICATION OR LICENSE

IT IS THE FACT FINDER (JURY OR JUDGE) IT IS THE FACT FINDER (JURY OR JUDGE) WHO DETERMINES THE WEIGHT AND WHO DETERMINES THE WEIGHT AND CREDIBILITY TO BE GIVEN TO THE CREDIBILITY TO BE GIVEN TO THE TESTIMONY OF BOTH EXPERT AND ORDINARY TESTIMONY OF BOTH EXPERT AND ORDINARY WITNESSESWITNESSES

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OPINION EVIDENCE BY ORDINARY OPINION EVIDENCE BY ORDINARY WITNESSESWITNESSES

NEITHER THE ORDINARY OR EXPERT NEITHER THE ORDINARY OR EXPERT WITNESS WOULD BE PERMITTED TO WITNESS WOULD BE PERMITTED TO GIVE AN OPINION AS TO WHETHER THE GIVE AN OPINION AS TO WHETHER THE DEFENDANT IS GUILTY OR INNOCENTDEFENDANT IS GUILTY OR INNOCENT

TESTIMONY OF ORDINARY WITNESSES TESTIMONY OF ORDINARY WITNESSES MAY INCLUDE OPINIONS AND MAY INCLUDE OPINIONS AND CONCLUSIONS AS TO COMMON THINGS CONCLUSIONS AS TO COMMON THINGS THAT ARE WITHIN THE KNOWLEDGE OF THAT ARE WITHIN THE KNOWLEDGE OF THE AVERAGE PERSONTHE AVERAGE PERSON

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DIRECT EXAMINATION OF DIRECT EXAMINATION OF WITNESSESWITNESSES

THE FIRST WITNESS TO APPEAR IN CRIMINAL THE FIRST WITNESS TO APPEAR IN CRIMINAL CASES ARE GOVERNMENT WITNESSES CALLED CASES ARE GOVERNMENT WITNESSES CALLED BY THE PROSECUTOR TO SUPPORT THE BY THE PROSECUTOR TO SUPPORT THE STATE’S CASESTATE’S CASE

THE QUESTION-AND-ANSWER METHOD IS USED THE QUESTION-AND-ANSWER METHOD IS USED SO THAT THE OPPOSING LAWYER MAY OBJECT SO THAT THE OPPOSING LAWYER MAY OBJECT TO THE QUESTION BEFORE THE ANSWER IS IN TO THE QUESTION BEFORE THE ANSWER IS IN EVIDENCEEVIDENCE

BY THE USE OF SHORT GENERAL QUESTIONS, BY THE USE OF SHORT GENERAL QUESTIONS, THE WITNESS IS ABLE TO TELL THE STORY AND THE WITNESS IS ABLE TO TELL THE STORY AND AT THE SAME TIME IS KEPT TO THE POINTAT THE SAME TIME IS KEPT TO THE POINT

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CROSS-EXAMINATION OF CROSS-EXAMINATION OF WITNESSESWITNESSES

AFTER THE AFTER THE DIRECT EXAMINATIONDIRECT EXAMINATION, THE , THE WITNESS MAY THEN BE CROSS-WITNESS MAY THEN BE CROSS-EXAMINED BY THE OPPOSING ATTORNEYEXAMINED BY THE OPPOSING ATTORNEY

THE PURPOSES OF CROSS-EXAMINATION THE PURPOSES OF CROSS-EXAMINATION ARE:ARE: TO TEST THE BELIEVABILITY OF A TO TEST THE BELIEVABILITY OF A

WITNESS AND THE TRUTH OF HIS WITNESS AND THE TRUTH OF HIS TESTIMONYTESTIMONY

TO BRING OUT FACTS SUPPORTING THE TO BRING OUT FACTS SUPPORTING THE CROSS-EXAMINER’S CASECROSS-EXAMINER’S CASE

TO IMPEACH (DISCREDIT) THE WITNESSTO IMPEACH (DISCREDIT) THE WITNESS

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IMPEACHMENTIMPEACHMENT

IS ANOTHER ASPECT OF CROSS-IS ANOTHER ASPECT OF CROSS-EXAMINATION THAT IS INTENDED TO EXAMINATION THAT IS INTENDED TO AFFORD THE JURY A BASIS TO INFER AFFORD THE JURY A BASIS TO INFER THAT THE WITNESS’ CHARACTER IS THAT THE WITNESS’ CHARACTER IS SUCH THAT HE WOULD BE LESS SUCH THAT HE WOULD BE LESS LIKELY THAN THE AVERAGE LIKELY THAN THE AVERAGE TRUSTWORTHY CITIZEN TO BE TRUSTWORTHY CITIZEN TO BE TRUTHFUL IN HIS TESTIMONYTRUTHFUL IN HIS TESTIMONY

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IMPEACHMENTIMPEACHMENT IMPEACHMENT MAY BE ACCOMPLISHED BY IMPEACHMENT MAY BE ACCOMPLISHED BY

CROSS-EXAMINATION AND ALSO BY CROSS-EXAMINATION AND ALSO BY INTRODUCTION OF EVIDENCEINTRODUCTION OF EVIDENCE

THE FUNCTIONS OF IMPEACHMENT MAY BE THE FUNCTIONS OF IMPEACHMENT MAY BE CLASSIFIED AS FOLLOWS:CLASSIFIED AS FOLLOWS: TO ATTACK THE WITNESS’S CREDIBILITY AND TO ATTACK THE WITNESS’S CREDIBILITY AND

QUALIFICATIONS TO TESTIFY TRUTHFULLY QUALIFICATIONS TO TESTIFY TRUTHFULLY BECAUSE OF PRIOR CRIMINAL CONVICTION (AND BECAUSE OF PRIOR CRIMINAL CONVICTION (AND IN SOME JURISDICTIONS AND SOME INSTANCES, IN SOME JURISDICTIONS AND SOME INSTANCES, A SHOWING OF PRIOR BAD CONDUCT)A SHOWING OF PRIOR BAD CONDUCT)

TO ATTACK THE TESTIMONY GIVEN BY THE TO ATTACK THE TESTIMONY GIVEN BY THE WITNESS ON DIRECT EXAMINATION BY A WITNESS ON DIRECT EXAMINATION BY A SHOWING OF PRIOR INCONSISTENT STATEMENTSSHOWING OF PRIOR INCONSISTENT STATEMENTS

TO ATTACK THE WITNESS’S CREDIBILITY BY TO ATTACK THE WITNESS’S CREDIBILITY BY SHOWING BIAS, PREJUDICE OR ULTERIOR SHOWING BIAS, PREJUDICE OR ULTERIOR MOTIVES OF THE WITNESSMOTIVES OF THE WITNESS

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OBJECTIONS TO QUESTIONSOBJECTIONS TO QUESTIONS

OBJECTIONSOBJECTIONS TO QUESTIONS ARE THE TO QUESTIONS ARE THE FIRST LINE OF DEFENSE AGAINST FIRST LINE OF DEFENSE AGAINST STATEMENTS THE OPPOSING PARTY STATEMENTS THE OPPOSING PARTY SEEKS TO USESEEKS TO USE

IT IS THE LAWYERS WHO MUST IT IS THE LAWYERS WHO MUST OBJECT, NOT THE JUDGEOBJECT, NOT THE JUDGE

IN MOST INSTANCES, FAILURE TO IN MOST INSTANCES, FAILURE TO OBJECT WAIVES THE RIGHT TO AN OBJECT WAIVES THE RIGHT TO AN APPEAL TO A HIGHER COURTAPPEAL TO A HIGHER COURT

THE TRIAL JUDGE HAS CONSIDERABLE THE TRIAL JUDGE HAS CONSIDERABLE DISCRETION IN RULING UPON DISCRETION IN RULING UPON OBJECTIONS AND IN DETERMINING WHAT OBJECTIONS AND IN DETERMINING WHAT IS RELEVANT, MATERIAL AND COMPETENTIS RELEVANT, MATERIAL AND COMPETENT

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Objections!Objections!

OBJECTIONS ARE CLASSIFIED AS OBJECTIONS ARE CLASSIFIED AS FOLLOWS:FOLLOWS: OBJECTIONS TO THE SUBSTANCE OF THE OBJECTIONS TO THE SUBSTANCE OF THE

QUESTIONQUESTION OBJECTIONS TO THE FORM OF THE OBJECTIONS TO THE FORM OF THE

QUESTIONQUESTION OBJECTIONS TO THE ANSWEROBJECTIONS TO THE ANSWER

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THE REQUIREMENTS OF THE REQUIREMENTS OF RELEVANCY, MATERIALITY, AND RELEVANCY, MATERIALITY, AND

COMPETENCYCOMPETENCY TO MINIMIZE CONFUSION AND TO MAKE TO MINIMIZE CONFUSION AND TO MAKE

TRIALS MANAGEABLE, IT IS REQUIRED THAT TRIALS MANAGEABLE, IT IS REQUIRED THAT ALL EVIDENCE MUST BE ALL EVIDENCE MUST BE RELEVANT, MATERIAL RELEVANT, MATERIAL AND COMPTENTAND COMPTENT

TO INTRODUCE FACTS, TESTIMONY OR A TO INTRODUCE FACTS, TESTIMONY OR A PHYSICAL OBJECT, IT MUST BE SHOWN THAT:PHYSICAL OBJECT, IT MUST BE SHOWN THAT: THE EVIDENCE MUST ADDRESS A THE EVIDENCE MUST ADDRESS A

MATERIAL FACTMATERIAL FACT IT MUST BE RELEVANT TO THE FACTIT MUST BE RELEVANT TO THE FACT IT MUST BE ABLE TO AFFECT THE IT MUST BE ABLE TO AFFECT THE

PROBABLE TRUTH OR FALSITY OF THAT PROBABLE TRUTH OR FALSITY OF THAT FACT BY BEING COMPETNETFACT BY BEING COMPETNET

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MATERIAL & RELEVANTMATERIAL & RELEVANT

A FACT IS A FACT IS MATERIALMATERIAL IF IT WILL IF IT WILL EFFECT THE RESULT OF A TRIALEFFECT THE RESULT OF A TRIAL

EVIDENCE IS EVIDENCE IS RELEVANTRELEVANT IF IT IF IT HAS A TENDENCY TO MAKE HAS A TENDENCY TO MAKE MATERIAL FACT MORE OR LESS MATERIAL FACT MORE OR LESS PROBABLEPROBABLE

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REDIRECT EXAMINATION AND REDIRECT EXAMINATION AND RECROSS-EXAMINATIONRECROSS-EXAMINATION

AFTER THE CROSS-EXAMINATION, THE LAWYER WHO AFTER THE CROSS-EXAMINATION, THE LAWYER WHO PRODUCED THE WITNESS MAY THEN CONDUCT A PRODUCED THE WITNESS MAY THEN CONDUCT A REDIRECT EXAMINATIONREDIRECT EXAMINATION OF THE WITNESS OF THE WITNESS

THE PURPOSES OF REDIRECT EXAMINATION CAN BE THE PURPOSES OF REDIRECT EXAMINATION CAN BE DEFINED AS FOLLOWS:DEFINED AS FOLLOWS: TO RESTORE THE CREDIBILITY OF A TO RESTORE THE CREDIBILITY OF A

WITNESS WHO HAS BEEN IMPEAHED ON WITNESS WHO HAS BEEN IMPEAHED ON CROSS-EXAMINATION BY EXPLANATION CROSS-EXAMINATION BY EXPLANATION OF MATTERS ON WHICH THE CROSS-OF MATTERS ON WHICH THE CROSS-EXAMINER SOUGHT TO IMPEACH THE EXAMINER SOUGHT TO IMPEACH THE WITNESSWITNESS

TO RESTORE THE CREDIBILITY OF A TO RESTORE THE CREDIBILITY OF A WITNESS BY POINTING OUR PRIOR WITNESS BY POINTING OUR PRIOR CONSISTANT STATEMENTS WHEN THE CONSISTANT STATEMENTS WHEN THE IMPEACHMENT WAS MADE BY MEANS OF IMPEACHMENT WAS MADE BY MEANS OF PRIOR INCONSISTNET STATEMENTSPRIOR INCONSISTNET STATEMENTS

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REDIRECT EXAMINATION AND RECROSS-REDIRECT EXAMINATION AND RECROSS-EXAMINATION (Cont.)EXAMINATION (Cont.)

ADDITIONAL WITNESSES MAY BE USED ADDITIONAL WITNESSES MAY BE USED TO TO REBUTREBUT THE CROSS-EXAMINATION THE CROSS-EXAMINATION AND ASSIST IN REHAILITATIONAND ASSIST IN REHAILITATION

NEW EVIDENCE MAY ALSO BE NEW EVIDENCE MAY ALSO BE PRESENTED IF THE CROSS-PRESENTED IF THE CROSS-EXAMINATION OPENED THE DOOR TO EXAMINATION OPENED THE DOOR TO NEW MATTERSNEW MATTERS

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RECROSS-EXAMINATIONRECROSS-EXAMINATION

RECROSS-EXAMINATION IS THE RECROSS-EXAMINATION IS THE FOURTH AND USUALLY THE LAST FOURTH AND USUALLY THE LAST STAGE OF THE EXAMINATION OF THE STAGE OF THE EXAMINATION OF THE WITNESSWITNESS

THE RECROSS-EXAMINATION IS THE RECROSS-EXAMINATION IS USUALLY CONFINED TO MATTERS USUALLY CONFINED TO MATTERS DEALT WITH ON THE REDIRECT DEALT WITH ON THE REDIRECT EXAMINATIONEXAMINATION

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THE ROLE OF THE TRIAL JUDGETHE ROLE OF THE TRIAL JUDGE

THE TRIAL JUDGE MANAGES THE COURTROOM, THE TRIAL JUDGE MANAGES THE COURTROOM, THE TRIAL AND RULES ON QUESTIONS OF LAWTHE TRIAL AND RULES ON QUESTIONS OF LAW

THE JUDGE RULES ON MOTIONS AND THE JUDGE RULES ON MOTIONS AND OBJECTIONS MADE BY ATTORNEYS BEFORE AND OBJECTIONS MADE BY ATTORNEYS BEFORE AND DURING A TRIAL AND GIVES INSTRUCTIONS TO DURING A TRIAL AND GIVES INSTRUCTIONS TO THE JURYTHE JURY

THE TRIAL JUDGE HAS THE OBLIGATION TO THE TRIAL JUDGE HAS THE OBLIGATION TO SAFEGUARD BOTH THE RIGHTS OF AN ACCUSED SAFEGUARD BOTH THE RIGHTS OF AN ACCUSED AND THE INTERESTS OF THE PUBLIC IN THE AND THE INTERESTS OF THE PUBLIC IN THE EFFICIENT AND EFFECTIVE ADMINISTRATION OF EFFICIENT AND EFFECTIVE ADMINISTRATION OF CRIMINAL AND CIVIL JUSTICECRIMINAL AND CIVIL JUSTICE

THE TRIAL JUDGE MAY NOT COMMENT ON THE THE TRIAL JUDGE MAY NOT COMMENT ON THE WEIGHT OF THE EVIDENCEWEIGHT OF THE EVIDENCE

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THE ROLE OF THE TRIAL JUDGE (Cont.)THE ROLE OF THE TRIAL JUDGE (Cont.)

FEDERAL RULE OF EVIDENCE 614 (b) ALLOWS FEDERAL RULE OF EVIDENCE 614 (b) ALLOWS THE THE COURTCOURT (THE TRIAL JUDGE) TO (THE TRIAL JUDGE) TO INTERROGATE WITNESSESINTERROGATE WITNESSES

IN A FEW STATES, JURORS ARE PERMITTED TO IN A FEW STATES, JURORS ARE PERMITTED TO QUESTION WITNESSES INDIRECTLY THROUGH QUESTION WITNESSES INDIRECTLY THROUGH THE TRIAL JUDGETHE TRIAL JUDGE

ALMOST ALL FEDERAL COURTS PERMIT ALMOST ALL FEDERAL COURTS PERMIT JURORS TO ASK QUESTIONS OF WITNESSES BY JURORS TO ASK QUESTIONS OF WITNESSES BY SUBMITTING THE QUESTIONS TO THE JUDGESUBMITTING THE QUESTIONS TO THE JUDGE

AS WITH QUESTIONS POSED BY THE JUDGE, AS WITH QUESTIONS POSED BY THE JUDGE, THE PARTIES MAY OBJECT TO THESE THE PARTIES MAY OBJECT TO THESE QUESTIONS ON THE SAME GROUNDS AS QUESTIONS ON THE SAME GROUNDS AS QUESTIONS ASKED BY ONE OF THE PARTIESQUESTIONS ASKED BY ONE OF THE PARTIES

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CAN A PERSON WHO HAS BEEN CAN A PERSON WHO HAS BEEN HYPNOTIZED TESTIFY AS A HYPNOTIZED TESTIFY AS A

WITNESS?WITNESS? STUDIES OF HYPNOSIS BEGAN OVER TWO STUDIES OF HYPNOSIS BEGAN OVER TWO

HUNDRED YEARS AGO BUT TO DATE THERE IS NO HUNDRED YEARS AGO BUT TO DATE THERE IS NO SINGLE EXPLANATION OF THE PHENOMENON SINGLE EXPLANATION OF THE PHENOMENON THAT SATISFIES MOST SCIENTISTSTHAT SATISFIES MOST SCIENTISTS

THE U.S. SUPREME COURT IDENTIFIED THE THE U.S. SUPREME COURT IDENTIFIED THE FOLLOWING THREE PROBLEMS IN THE USE OF A FOLLOWING THREE PROBLEMS IN THE USE OF A WITNESS WHOSE TESTIMONY HAS BEEN WITNESS WHOSE TESTIMONY HAS BEEN HYPNOTICALLY REFRESHED:HYPNOTICALLY REFRESHED: THE SUBJECT BECOMES “SUGGESTIBLE” THE SUBJECT BECOMES “SUGGESTIBLE”

AND MAY TRY TO PLEASE THE AND MAY TRY TO PLEASE THE HYPNOTIST WITH ANSWERS THE HYPNOTIST WITH ANSWERS THE SUBJECT THINKS WILL BE MET WITH SUBJECT THINKS WILL BE MET WITH APPROVALAPPROVAL

THE SUBJECT IS LIKELY TO FILL IN THE SUBJECT IS LIKELY TO FILL IN DETAILS FROM THE IMAGINATION IN DETAILS FROM THE IMAGINATION IN ORDER TO MAKE AN ANSWER MORE ORDER TO MAKE AN ANSWER MORE COHERENT AND COMPLETECOHERENT AND COMPLETE

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CAN A PERSON WHO HAS BEEN HYPNOTIZED CAN A PERSON WHO HAS BEEN HYPNOTIZED TESTIFY AS A WITNESS? (Cont.)TESTIFY AS A WITNESS? (Cont.)

THE SUBJECT EXPERIENCES “MEMORY THE SUBJECT EXPERIENCES “MEMORY HARDENING” WHICH GIVES HIM GREAT HARDENING” WHICH GIVES HIM GREAT CONFIDENCE IN BOTH TRUE AND FALSE CONFIDENCE IN BOTH TRUE AND FALSE MEMORIES, MAKING EFFECTIVE CROSS-MEMORIES, MAKING EFFECTIVE CROSS-EXAMINATION MORE DIFFICULTEXAMINATION MORE DIFFICULT

BECAUSE OF THESE AND OTHER PROBLEMS, BECAUSE OF THESE AND OTHER PROBLEMS, SOME STATES WILL NOT PERMIT THE USE OF SOME STATES WILL NOT PERMIT THE USE OF HYPNOTICALLY REFRESHED TESTIMONY AS HYPNOTICALLY REFRESHED TESTIMONY AS EVIDENCEEVIDENCE

OTHER STATES HAVE ESTABLISHED OTHER STATES HAVE ESTABLISHED GUIDELINES FOR THE USE OF HYPNOTICALLY GUIDELINES FOR THE USE OF HYPNOTICALLY REFRESHED TESTIMONYREFRESHED TESTIMONY

ANOTHER PROBLEM AREA COMMONLY ANOTHER PROBLEM AREA COMMONLY ASSOCIATED WITH HYPNOTICALLY REFRESHED ASSOCIATED WITH HYPNOTICALLY REFRESHED MEMORY IS THAT OF MEMORY IS THAT OF “REPRESSED “REPRESSED MEMORIES”MEMORIES”