Crim Pro Exam II

Personal Firsthand Knowledge To Be a Witness

The witness must have some personal knowledge of the matter before the court

Competency To Be A Witness

The witness must demonstrate the capacity to observe, remember, and narrate, as well as to understand their duty to tell the truth

Truthfulness To Be A Witness

The witness must declare he will testify truthfully-most witnesses will take an oath, swearing they will tell the truth

Adults Presumed To Be Competent (general presumption)

• May be challenged based on the witness’s inability to “to perceive, remember, or narrate” the circumstances, or inability “to understand the duty to tell the truth”

• By the jury, but the party contending that the witness is competent can provide proof

Children as Witness

• The trial judge will question (voir dire) the child outside the presence of the jury to determine if the child is competent to testify

  • Child must be able to remember what occurred, tell about the events, and know to be truthful

  • Trial judge makes the decision

• Age of the child is important but not determinative

Voir Dire (French for “to speak the truth”)

Used to describe the preliminary examination used to determine whether a witness or juror is competent or qualified

Judge

Determines competency of witnesses

Jury

Determines credibility and weight of evidence

Factors considered when determining credibility and weight of testimony

• Perception

• Memory

• Narration

Vouching

Consequence of the rule that the jury evaluates the credibility of a witness and the witness’s testimony

Vouching occurs when the credibility of a witness is enhanced or detracted by statements made by other witnesses, or by comments made by an attorney in closing argument before the jury

Subpoena

A command to the person to whom it is directed to appear on a specified date at a given given time and place for the purpose of testifying

Subpoena duces tecum

Requiring the person to bring documents or other materials that are expected to be potentially useful in the proceedings

6th Amendment Right To Confront and Cross examination witnesses

The witness not only testifies in the presence of the accused but is also subject to questioning by the opposing party

American law seeks to keep witnesses honest by having them testify:

• Under oath or affirmation

• In the presence of the fact-finder and the accused

• Subject to cross-examination

• Subject to possible perjury charges

Defendant in criminal trial can testify

Can testify in their defense:

• Defendants have a right to testify on their own behalf

• Defendants who take the witness stand to testify on their own behalf waive their right to remain silent and must answer questions on cross-examination

Ordinary (lay) witnesses

Witnesses who have firsthand information about a fact gained by personal observation.

• Their testimony is usually limited to what they have seen, heard (hearsay is in most instances, excluded), smelled, felt, and, on rare occasions, tasted.

Expert witness

A witness who has special knowledge or training in a specialized area.

• Three questions that the trial court considers when a party seeks to introduce an expert witness:

  • Is the subject on which the expert witness will testify one for which the court can receive the opinion of an expert?

  • What qualifications are necessary to qualify the witness as an expert?

  • Does the witness meet these qualifications?

  • Qualification as an expert in some fields requires years of formal education, training, certification, or a license.

Direct Examination

• The first witnesses to appear in criminal cases are often government witnesses called by the prosecutor to support the state’s case.

• The question-and-answer method is used so the opposing lawyer may object to the question before the answer is in evidence.

• By the use of short direct questions, the witness is able to tell the story and at the same time is kept to the point.

Cross-examination

The witness may then be cross-examined by the opposing attorney.

• The purposes of cross-examination are:

• To test the believability of a witness and the truth of the witness’s testimony.

• To bring out facts supporting the cross-examiner’s case.

• To impeach (discredit) the witness.

Redirect

• To restore the credibility of a witness who has been impeached on cross-examination by explanation of matters on which the cross-examiner sought to impeach the witness.

• To restore the credibility of a witness by pointing out prior consistent statements when the impeachment was made by means of prior inconsistent statements.

Re-cross examination

An attorney gets a second chance to question a witness

Impeachment of opponent’s witness (can use prior convictions, prior inconsistent statements, bias or prejudice and/or test witnesses  believability)

Impeachment may be accomplished questions during cross-examination and also by introduction of evidence.

The functions of impeachment may be classified as follows:

• To attack the witness’s credibility and qualifications to testify truthfully because of prior criminal conviction (and in some jurisdictions and some instances, a showing of prior bad conduct);

• To attack the testimony given by the witness on direct examination by a showing of prior inconsistent statements; and

• To attack the witness’s credibility by showing bias, prejudice, or ulterior motives of the witness

Objections to form or substance of question or to the answer

Questions are the first line of defense against statements the opposing party

seeks to use.

• It is the lawyers who must object, not the judge.

• In most instances, failure to object waives the grounds for an appeal to a higher court.

• The trial judge has considerable discretion in ruling upon objections and in determining what is relevant, material, and competent.

Classifications of Objections

• Objections to the substance of the question

• Objections to form of the questions

• Objections to the answer

Material and Relevant

• A fact is material if it could affect the result of a trial

• Evidence is relevant if it has a tendency to make

All evidence must be…

Relevant, material, and competent

Judicial Notice

Relieves parties in criminal and civil trials from the duty of introducing witnesses, documents, and other evidence to prove uncontroverted facts

Ex:

• Establishing the meaning of words, phrases, or abbreviations commonly used “on the streets”

• Establishing the sex of witness or defendant;

• Establishing the location of well-known sections of a city or well-known streets and buildings

Judicial notice of facts cited in any of the following:

• Recognized reports

• Learned treaties

• Dictionaries

• Simple data printed in newspapers

5th Amendment privilege against self-incrimination

Requires “that the government seeking to punish an individual produce the evidence against him by its own independent labor rather than by the cruel, simple expedient of compelling it from his own mouth”

Areas Where The 5th Amendment Privilege Against Self-Incrimination Does Apply

• Applies only to evidence of a communicative or testimonial nature

• Only applies to materials or documents in which the person invoking the privilege has sole possession

• The Fifth Amendment protection against self-incrimination becomes applicable when a person’s statement or communication is:

  • Compelled;

  • Testimonial;

  • Self-incriminating; or

  • In any criminal case.

• Where the witness insists he or she is innocent of any crime.

• When a person refuses to answer a specific question on a tax return (but not to refuse to file a return altogether).

• When a person is questioned by a probation officer, so long as the officer makes it clear that answers to the questions are mandatory, not optional.

• Where a defendant remains silent under questioning, the prosecution is prohibited from introducing evidence of that silence at trial

Areas Where The 5th Amendment Privilege Against Self-Incrimination Does Not Apply

• It does not apply when only physical evidence is sought and obtained; for ex:

  • Withdrawing blood and using it as evidence to show that the defendant was driving a vehicle while intoxicated;

  • Using a handwriting exemplar

  • Compelling the accused to exhibit his person for observation, as in a lineup or showup;

  • Making a voice exemplar (sample);

  • For identification purposes, to put on a stocking mask at trial and permit a witness to testify as to similarity to the masked robber, or to dye his/her hair to the color it was at the time of the offense;

  • Testimony of a witness that the defendant was compelled to put on an item of clothing shirt and it fit the defendant;

  • Where immunity has been granted and the person is compelled to testify or agrees to testify as part of a plea agreement;

  • If the defendant is a corporation or an unincorporated union or other organization;

  • Where the incrimination is of others and is not self- incrimination;

  • Where the public interest in protecting children outweighs the Fifth Amendment privilege;

  • In the case of U.S. military personnel and law enforcement officers who witness illegal conduct of their fellow officers and military associates; and

  • Where there has been a voluntary, intelligent waiver of the

privilege.

Attorney-Client Privilege

To encourage full and frank communication between attorneys and their clients and thereby promote broader public interests and the observance of law and administration

Requirements

• The client must seek the professional legal services of an attorney and have the intention of establishing an attorney-client relationship

Limits

• When an attorney represents both a corporation and the president of that corporation;

• Disclosures about future wrongdoing, referred to as the crime-fraud exception; or

• When an attorney has a legal and ethical obligation to deliver physical evidence of a crime to the police.

The Husband-Wife Privilege (marital privilege)

• The general rule is that a spouse can not be forced to testify against the other spouse

Requirements

• The marital confidential communications privilege prohibits testimony regarding private intra-spousal communications and extends only to words or acts that are intended as a communication to the other spouse

• The communication must also occur during a time when the

marriage is valid under state law and the couple is not permanently separated.

• The communication must be made in confidence. It cannot be made in the presence of a third party and the communicating spouse cannot intend for it to be passed on to others.

Limit

• Does not extend to situations where wife and husband commit a crime together (partner-in-crime exception)

• Spouses can testify of beatings and other violence either against the spouse or their children

The Physician-Patient Privilege

Requirement

• The patient must have consulted the physician for treatment or diagnosis, or for possible treatment.

  • If the physician calls in other medical doctors to aid in the treatment or diagnosis, any disclosures made to any of the physicians are also privileged.

Limit

• It does not apply when a suspect or a defendant is being examined at the request of a court, a law enforcement agency, or prosecutor

Psychotherapist-Patient Privilege

Requirement

• The patient must seek treatment or diagnosis of a licensed psychotherapist for treatment of mental or emotional conditions, including drug addiction.

• The conditions and limitations of this privilege are ordinarily similar to the physician-patient privilege.

Limit

• Not available where the patient is charged with child sexual abuse

• “Duty to protect” - Psychotherapist discovers that a patient poses a serious threat to a third person; the psychotherapist must exercise reasonable efforts to protect that person

Clergy-Penitent Privilege

Establishes a legal protection against being forced to testify on a witness stand about confidential disclosures made to them

News reporter’s privilege

• Can be claimed only by professional journalists in most states

• Been invoked by persons posting information on websites that do not fit the traditional print media model

Limits

• Exceptions include when a life is a risk or in a situation that concerns an emergency within the community

Parent-child privilege

Only one federal district court and one state appellate court have recognized some type of parent-child privilege in the absence of a statute creating the privilege.

• Three states have adopted a parent-child testimonial privilege, though they differ in scope and application

Informant privilege

To encourage people to provide information, governments must be able to assure those people providing the information that their identity will not be disclosed.

• Not an absolute privilege

• Defendants in criminal trials have the right to know the names of people whp were at the scene of the alleged crime or persons who were participants in the crime that is alleged

Limits

• If the informant was at the scene of the crime or participated in the crime, courts hold that the informant’s identity must be disclosed to the defense lawyer.

• When drugs are found and the defendants are charged, they may demand the name of the informant to judge the accuracy of the search warrant.

The secrecy of grand jury proceedings as a privilege:

• The Federal Rules of Criminal Procedure forbid disclosure of “matters occurring before a grand jury” and provide that violations can be punished as contempt of court (Rule 6[e]).

• According to the grand jury secrecy requirements, those serving on a grand jury cannot disclose proceedings and deliberations by that body.

Hearsay Rule

• A statement, other than one made by the declarant while testifying at the trial or hearing, is offered in evidence to prove the truth of the matter asserted.

  • A declarant is the person who makes a statement, either in or out of court.

Assertive Statement

• The declarant’s statement must be an assertive statement offered as proof that the subject matter of the statement is true in order to fall within the hearsay rule.

• An assertive statement is one in which the declarant intends to communicate a thought or belief

• Is inadmissible (lots of exceptions)

Statements include

• Verbal

• Written

• Non-verbal communication

Declarant

The person who made the assertive statement

Not hearasy

• Admissions or confessions by the defendant or the defendant’s co-spirator are not hearsay \

• The statement is inconsistent and was given

• Under oath at a previous trial, hearing, or deposition.

• The statement is consistent and is offered to rebut a charge that the witness’ present testimony is a recent fabrication or stems from nan improper motive.

Testimony is generally seen as presenting four risks relating to its truthfulness

• The accuracy of the witness’s perception;

• The memory of the witnesses;

• The meaning of the testimony; and

• The sincerity of the witnesses

Hearsay and the 6th Amendment Confrontation Clause

• The admission of out-of-court statements presents not only issues under relevant hearsay rules but also potential conflict with the Sixth Amendment’s Confrontation Clause

• The Confrontation Clause in the U.S. Constitution entitles a defendant in a criminal case to demand witnesses to testify against him in his presence.

• If an out-of-court statement is admitted as evidence against the accused, the person making that statement is a “witness” who is not “confronting” the accused.

Confrontation Clause

To protect defendants in criminal cases