(5) Witnesses

(5) Witnesses - Criminal Evidence and Procedure Chapter 5...

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Criminal Evidence and Procedure Chapter 5: Witnesses Witnesses This chapter will cover 5 key issues related to the trial witness 1. who is competent to testify 2. how the credibility of a witness is attacked 3. what can be done if the witness’s memory is faulty 4. what a lay person is allowed to testify about 5. how and when expert witnesses are used 5.1 Competency of Witness All evidence is introduced via witness testimony every witness who testifies in court must be competent – able to communicate wit the jury – not the same as determining if someone is mentally competent to stand trial in addition they must possess relevant information Duty To Tell The Truth Neither swearing nor the Bible are mandatory when taking the oath Purpose is to make it clear to the a witness that they are testifying under the penalty of perjury Knowingly lies – subject to perjury charges – this threat is assumed to be sufficient to keep witnesses from lying Prosecutors rarely file perjury charges Children as witnesses – do not understand “under penalty of perjury” Atty who calls child must show that they know they are required to tell the truth Simple questions are asked in a manner that a child can understand Another problem – people who can not distinguish bt fact and fantasy (again common with children) When a child is the victim it is the prosecutor’s job to convince the judge and later the jury, that they can differentiate bt fact and fantasy Senility and mental illness can result in the inability to tell fact from fiction – factual questions are used to show that the potential witness is out of touch with reality – done before testifying in front of the jury Some courts have ruled that info discussed while under hypnosis, can not be testified about in court – could this info have been planted while under hypnosis Ability to Narrate Must be able to narrate the events in questions – tell about them Must be able to coherently answer questions – severely mentally retarded and young children may not be able to do this Meridith Spencer Page 1 of 7
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Criminal Evidence and Procedure Chapter 5: Witnesses Those who can not speak English require a translator (sign language too) Procedure to Establish Competency If there is a question about a witness’s testimony a hearing will be held in away from the jury before the witness takes the stand (voir dire) Side wishing to call the witness will bear the burden of convincing the judge, opposing counsel can cross-examine Screening process has two key questions: 1. knowing there is a duty to tell the truth 2. being able to narrate simply suspecting that one side will commit perjury is not grounds to prevent them from taking the stand – in some states previous perjury conviction may bar them from testifying 5.2 Impeachment One of the main functions of cross-exam is convincing the jury that they should not believe the other side’s witnesses – impeachment A witness is impeached by asking questions If the answers indicate that the witness lacks credibility, those answers will be
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This note was uploaded on 06/25/2008 for the course CRJ 152 taught by Professor Spencer during the Spring '05 term at Middlesex CC.

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(5) Witnesses - Criminal Evidence and Procedure Chapter 5...

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