CJ305 Criminal Evidence Welcome to our Seminar!!! (We will begin shortly) Tonight – Unit 3 (Chapter 5 – Witnesses -- Lay & Expert) (Chapter 6 – Credibility and Impeachment)

CJ305 Criminal Evidence - Unit 2 Mini Review In Unit 2 we discussed: Chapters 3 & 4 in text. Evidence Judicial Notice Presumptions Burdens of proof Witness competency Privileged communications

CJ305 Criminal Evidence - Unit 3 Mini Preview In Unit 3 we will be discussing: –Subpoenas –Lay Witnesses –Expert Witnesses –Character Witnesses –Witness Impeachment

CJ305 Criminal Evidence - Unit 3 -- Workplace Ethical Dilema While on patrol, a citizen stops you and offers information on criminal activity in your beat area. The informant will only tell you the information if you agree to keep it confidential. This informant has very valuable information and is insistent about keeping it confidential. Do you give your word as an officer and a representative of your department that you will keep the source of the information confidential?

CJ305 Criminal Evidence - Unit 3 How does a person become a witness? How are witnesses brought into court? –In state? –Out of state? What is a subpoena duces tecum

CJ305 Criminal Evidence - Unit 3 A person becomes a witness in a trial if they have personal or expert knowledge about the facts of the case. Witnesses are summoned to court through issuance and service of a subpoena. (see example on Pg 116.) –In state: typically issued by the atty and personally served upon the witness –Out of state: Subpoena is sent to court in the witnesses jurisdiction where the person will attend a hearing to determine if they will be ordered to appear in the original court matter. A subpoena duces tecum is used to compel the witness to appear in court and produce all specified evidence, documents or other physical evidence identified or related to the subject(s) of the subpoena.

CJ305 Criminal Evidence - Unit 3 What does the “rule on witnesses” require? What are the 2 major types of witnesses?

CJ305 Criminal Evidence - Unit 3 The rule on witnesses requires that witnesses be excluded from the courtroom while other witnesses are testifying. The 2 Major types of witnesses are: –Lay witnesses –Expert witnesses

CJ305 Criminal Evidence - Unit 3 What can lay witnesses testify about? What is an expert witness permitted testify about?

CJ305 Criminal Evidence - Unit 3 Lay witnesses can testify about matters which are in their own personal knowledge only. –Lay witnesses can offer their opinion ONLY in limited areas of testimony such as a a signature, speed of a vehicle, drunkeness, age, distance, emotional state, character for truthfulness, etc. An expert witness is a person skilled at some art, trade, science, profession, etc. which is above the knowledge, skill or experience of the average person and who’s expertise in that area can aid the trier of fact in understanding matters of consequence in the trial. –Expert witnesses can offer testimony on facts as well as offer opinions as to hypotheticals or possible scenarios. An adverse witness is one who is aligned with the opposite side to that of the party calling the witness.

CJ305 Criminal Evidence - Unit 3 What are the 2 types of examination (questioning) that can be asked of a witness? What is a leading question?

CJ305 Criminal Evidence - Unit 3 The 2 types of questioning: Direct exam & Cross exam (cross-x). Direct exam: Presentation of the witnesses testimony through open-ended, non-leading type questions giving narrative type responses. (Can ask leading questions of adverse witnesses) Cross-x: questioning of a witness by the opposition where the questioner to detract from the witnesses credibility by using leading questions. A leading question is one in which the question is phrased so as to suggest the answer. (Ex. “Isn’t it true that on the night of Dec 7, you were….”)

CJ305 Criminal Evidence - Unit 3 What 3 requirements must exist in order to be able to utilize expert testimony? What is the test for the admissibility of expert testimony?

CJ305 Criminal Evidence - Unit 3 3 expert testimony requirements: –Subject matter of proposed testimony must be relevant in the case. –Expert witness field is one which requires scientific technical or specialized knowledge. –Witness must be shown to have the background necessary to qualify as an expert in the field. Admissibility test (Daubert-Kumho test): –Trial judge determination of that the subject of the expert’s testimony has the statute of scientific knowledge based on 4 factors: Testing the theory or technique Peer review and publication of the theory or technique The particular technique/theory’s known or potential error rate The theory/technique’s general acceptance

CJ305 Criminal Evidence - Unit 3 What is meant by witness credibility? Legally, what is meant by impeachment? What the 5 ways that a witness can be impeached?

CJ305 Criminal Evidence - Unit 3 Witness credibility refers to the quality that a witness’s testimony is believable (see Pg. 155 for an excellent example of a jury instruction on witness credibility). Impeachment: The process, thru testimony or other evidence in which the believability of a witness’s testimony is diminished or destroyed. Ways to impeach: –Contradiction –Character for untruthfulness –Prior inconsistent statement –Proof of bias or motive to falsify testimony –Proof of diminished witness capacity

CJ305 Criminal Evidence - Unit 3 What is impeachment by contradiction? What is impeachment of character for untruthfulness? What is impeachment by prior inconsistent statement? What is impeachment by bias/motive to falsify? What is impeachment by diminished witness capacity?

CJ305 Criminal Evidence - Unit 3 Contradiction: Asserts the opposite of the a statement or testimony or specifically denies it. Character for untruthfulness: Generally evid of a trait of char to prove a persons conduct is conformity with that trait is inadmissible. A character of untruthfulness can be proven thru: –Evid of the conviction of certain crimes –Evid of bad conduct not resulting in a conviction –Evid of a reputation for untruthfulness –Opinion testimony regarding untruthfulness

CJ305 Criminal Evidence - Unit 3 A prior inconsistent statement is admissible to impeach a witness regardless of when and how it was made as long as it is inconsistent with trial testimony of the witness and is relevant to the case. Bias is always at issue in a case and goes to the hostility of a witness to one side or the other. A finding of bias does not invalidate the testimony, but goes to the degree of weight the trier of fact gives to the testimony. Diminished witness capacity goes to a witnesses ability to be a witness such as hear, see, smell, recall, describe facts and their sincerity.

CJ305 Criminal Evidence - Unit 3 Can a party calling a witness impeach that witness? What does it mean to rehabilitate a witness?

A party can impeach a witness which they have called. While not common, if a witness is deemed an adverse witness, then it can tactically be in the best interest of the party calling them to impeach that witness so as to cast doubt in the eyes of the trier of fact as to the credibility of the witness’s testimony. A witness who has been impeached by asking of questions designed to explain or mitigate any damage to the witness’s testimony or believability.

CJ305 Criminal Evidence - Unit 3 Mini Review In Unit 3 we discussed: –Subpoenas –Lay Witnesses –Expert Witnesses –Character Witnesses –Witness Impeachment

CJ305 Criminal Evidence - Unit 4 Mini Preview In Unit 4 we will be discussing: –Chapter 7 in your textbook –Hearsay –Exceptions to the Hearsay Rule Foundational requirements –Confrontation Clause ….and of course much much more, so I look forward to seeing everyone on the Discussion Boards this week and next week in our Seminar!! Thank you!!!