Witness Competency and Opinion Testimony in Criminal Proceedings - Prof. Lance Selva, Study notes of Criminal Justice

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Criminal Evidence and Procedure

10/13/

 Testimonial evidence; every witness is presumed competent to give testimony unless proven otherwise o Testimonial attributes; a witness may possess one more than another, which may still be okay  Every witness must have the ability to observe or perceive  i.e. car wreck; a witness must have been there to give a valid statement  Ability to remember, or to recall, an event  i.e. car wreck (liability coverage); victim in wreck lost conscious memory after the initial wreck and therefore probably will not be deemed competent to testify  Ability to relate; person being able to communicate their testimony to the jury  i.e. kid testifies in front of adults and “locks up” o There is no precise age deems a witness to be incompetent from giving testimony  i.e. adult in first stages of dementia who cannot form a coherent testimony  Appreciating the evidence (oath); person swears or affirms to tell the truth  Every witness, prior to taking the stand, must be sworn in (affirmation)  The term “under God” and the hand on the Bible are NOT required  If bringing in a child witness, usually (s)he will not be sworn in o The judge may simply ask the child if he knows what lying is, etc… o Mental and moral standards will not preclude a witness from taking the stand, except …  Every witness must have personal knowledge of that which they are testifying about  Witness must declare that they will testify truthfully o Common law (old ways) disqualified a person from testifying, if …  Lack of belief in God  Infancy; no definitive age of incompetency  Insanity; could not give testimony  Conviction of a crime; precludes them if committed a felony  If married to person on trial, you could not give testimony against spouse o Legal incapacity (under 7 years of age)  Conclusive irrebuttable presumption; cannot present any evidence to the contrary  Cannot be held criminally responsible for an act because they cannot form the necessary mental state to commit a crime  Ages 7-10, we have rebuttable presumption  State can present evidence to show maturity level and were able to know right from wrong o Adjudicated Insanity (formal); can give testimony as long as they meet the four attributes o Conviction of a crime; felons/misdemeanants are ok as long as they meet the four attributes o Marriage; does not exclude you from giving testimony, but you can refuse to give testimony o A presiding judge cannot step off the bench and testify as a witness in a case he is presiding over o Jurors cannot testify in a case in which they are a part because they would not be impartial and would place more emphasis on their testimony o Dead Man Act; a question arises about something a recently deceased person has said or done  If going to receive something, and the person who allegedly gave the statement is dead, the receiving person cannot raise the statement to benefit himself o Examination/questioning of witnesses  State must present their entire criminal case against the person(s) – called case-in-chief  Direct examination; prosecutor examines a witness  Cross examination; defense attorney may examine a witness  TN has wide scope examination, which does not limit the defense to topics brought forth by the prosecution, as long as it is relevant  Redirect examination; prosecution can only examine the witness on what the defense has brought forth  Re-cross examination; defense can go again 10/22/  Leading questions (objectionable); leading a witness to obtain desired outcomes, and may be objected

to when an attorney is doing direct examination o When are leading questions permissible? – When not dealing with crucial matters of the case  During cross-examination  When you want to illicit preliminary information (ok even during direct examination)  i.e. “Mr. Smith, are you _______?” – typically yes/no answers  To assist a witness to become more comfortable on the stand  i.e. a child, senile individual, etc…  Hostile (changing statements – detrimental to defense) or uncooperative witnesses  In civil cases  Typically, an attorney will call the opposing person to the stand first because he will be most nervous  Misleading; presuming something to be true and asking questions assuming some fact to be true  Memoranda; to refresh a person’s memory o General rule: witness cannot read his/her testimony  Exception 1: memo/document/report can be used to refresh a witness’ memory  Present memory revived  Exception 2: if a witness has insufficient recall after reviewing documents and has laid a proper foundation, he can introduce the documents/notes into evidence  Past recollection recorded  Party wanting to introduce evidence must: o Adopt the document as being made by him and verify that the facts were recorded shortly after the event in question o Acknowledge that the facts in the document were accurate o Acknowledge that presently, he cannot remember the facts contained in the document o The writing cannot be introduced as an exhibit by the party wanting to introduce it into evidence because jurists typically will place unfair weight on the written document and will be unduly disadvantageous to the opposition  Exception: other party can have witness read whatever they want from a document and can have the document entered as an exhibit to be taken by the Jury for deliberation  Opinion testimony o Lay witnesses; opinions are generally limited  To allow opinions:  It must have been rationally based on the witness’ perception  It must be helpful to the jury in some way  Can give opinion on speed of a moving vehicle 10/27/  Opinion testimony o Foundation requirements  Subject matter must be appropriate  Witness must be qualified as an expert  Must establish that the witness has special knowledge, skills, training, etc…  Must possess a reasonable probability regarding his opinion, not, “I think A caused B”  No guessing and no speculation  Opinion must be supported by a factual basis; the source of information for an opinion may be gained by:  Hypothetical questions  Personal knowledge (observation) o Mechanic who can look at a fender bender and tell price of repairs  Information provided outside of court to the expert which is commonly relied upon by experts in a particular field o i.e. a doctor treating a patient based on x-rays and other information obtained by nurses/other doctors o Standards for when an expert is dealing with scientific testimony  Merrell Dan Standard  Whoever wants to proffer (use) the opinion must show the court that the test/principle involved is the result of reliable principles and methods, which is determined by the

judge  Factors taken into account under the Daubert standard  Whether the principles and methods can be reliably tested o Can another scientist obtain the same results  Whether a particular science (i.e. ballistics) has been subjected to peer-review  Whether a particular method/principle has a low error rate  Whether professional standards control a particular area (i.e. federal standards for ballistics)  Whether a particular scientific technique is generally accepted in the field  Whether the principles/methods were developed for purposes other than for providing testimony in a court case 10/29/  Opinion testimony o Ultimate issue  i.e. defendant claiming insanity in criminal case  Experts may not render opinions on the ultimate issue regarding an insanity plea because insanity is a legal term  Experts may, however, give medical opinions  i.e. medical practitioner giving opinion in a malpractice case in civil cases  How to cross examine an expert to weaken the expert’s opinion o If they rely on a hypothetical question, on cross-examination the other side can alter the hypothetical question  i.e. an attorney can ask if an alteration in one of the symptoms would have resulted in a different opinion by the doctor being questioned o If there is a difference in opinion between an expert and the expert’s mentor, the jury may place less weight upon the testimony given by the expert  Attorney’s can use authoritative texts or treatises to show the difference in opinions  Cross examination o Cross examination is so important that if a witness becomes unavailable to testify after direct examination, that testimony will be void o Limited rule; if attorney 1 asks a, b, and c during direct examination, attorney 2 is limited to only asking about a, b, and c  Impeachment; undermining a person’s credibility as being truthful o Technique 1: cross examination o Technique 2: introduction of extrinsic (independent) evidence o To impeach your own witness  The witness must be hostile or the adverse party in a civil case o To impeach adversary witness  Prior statement is inconsistent with the statement given at court  General rule: before extrinsic evidence (prior statement) can be introduced in order to show an inconsistency, the witness must be given an opportunity to say whether or not they made such a statement and either explain or deny any of the inconsistencies  Must ask the witness whether they made a prior statement and establish: o Time o Place o Audience o Subject matter  A party may not bolster or accredit a witness’ testimony until that witness has been impeached or had their credibility attacked o The attorney cannot use the fact that the witness statement given at the time a crime occurred was the same as the statement given at court o Exception 1: timely complaint  i.e. a rape victim can state that she went to the hospital to get a rape kit and spoke with police o Exception 2: prior statement by a witness identifying a perpetrator  DA can ask a witness questions regarding the circumstances

 General rule: with a prior inconsistent statement, the jury can only consider the prior inconsistent statement with regard to the witness’ credibility 11/03/  Impeachment o Bias  If the witness is financing/paying for the litigation  If the witness has a relationship with the defendant  Personal/Family  Business partners  If the witness has a personal grudge against the defendant  Attorney can bring into question the motivation of the witness; will they gain by testifying?  Reduced sentence for a cellmate who testifies  Dropped or reduced charges o Prior criminal conviction; most used form of impeachment  General rule; any felony conviction is generally admissible  If the defendant takes the stand and has a prior conviction, the judge must weigh the probative value against prejudicial the effect  Motion in limine may be requested to suppress prior convictions from being heard in court if the prior convictions would be overly prejudicial  Misdemeanors may be used for impeachment if it involves dishonesty on the part of the defendant, the prosecution, or any witness giving testimony  General rule for remoteness; convictions are not used for impeachment which are more than 10 years old (from the time the individual is either released from confinement or the start of probation  Method of impeachment #1; get the person to admit the facts of the conviction on cross examination  Method of impeachment #2; introduce extrinsic evidence (i.e. document stamped by the court clerk indicating that the witness has lied in court/perjury before) o Prior bad acts  General rule; witness can be asked on cross examination about any “bad acts” even if no conviction or arrest occurred, and must be show how the witness has been untruthful or dishonest  The cross examiner must act in good faith when asking about prior “bad acts”  Extrinsic evidence is not permitted; if the person testifying denies something you are asking them about (i.e. getting fired for theft), you cannot refute the claim o Sensory deficiencies  The witness could not have used his/her senses to see, hear, etc… the event in question  i.e. a deaf dude could not have overheard a conversation  i.e. a guy was extremely intoxicated o Rehabilitation; rephrasing a question which may be confused the witness and produced an unintended response by the witness  Defendant is the only one who can “open the door” for character evidence, the prosecution cannot  Completeness rule; if a portion of a document is presented by the defense, the entire document must be made available to the prosecution and vice versa  Offers of proof o Tangible o Attorney offer  Witnesses are not allowed to be in the courtroom while another person is giving testimony with the exception of expert witnesses and those who both the prosecution and defense agree can be in the room