Chapter 6 Witnesses

Question 1

Define competency of a witness, and explain the procedure for establishing the competency of a witness

Answer 1

A competent witness is a person who

1. Understands the duty to tell the truth and
2. Can narrate the events in question.

If there is a question of the witness’s competency, a hearing will be held before the person takes the stand. Jury will not be in the courtroom. Questions will be asked of the witness to determine if he/she is competent to testify. This is called voir dire.

Question 2

Give two examples of incompetent witness. Explain why each one is incompetent.

Answer 2

Someone who can not tell fact from fantasy.

Children have very active imaginations. They often have invisible friends who are quite real to them.

Senility and certain types of mental illness can result in the inability to tell fact from fiction.

Question 3

Define impeachment. Explain how impeachment is done, and give six ways a witness can be impeached.

Answer 3

One of the key functions of cross-examination is convincing the jurors that they should not believe the other sides witness; this is called impeachment

1. Bias or prejudice
2. Prior felony convictions
3. Immoral acts and uncharged crimes
4. Prior inconsistent statements
5. Inability to observe
6. Reputation

Question 4

Define rehabilitation of a witness, and give two examples of how a witness can be rehabilitated.

Answer 4

Rehabilitation is the restoration of the credibility of a witness. Once a witness has been impeached, the side that originally called the witness will try to convince the jury that it’s witness testified truthfully and should be believed.

1. Try to convince the jury that there was a reason for lying earlier, but a witness is telling the truth now
2. Show the jury that the statement used to impeach was taken out of context.
3. Introduced statements that were made before the inconsistent statement. If these statement are consistent with the trail testimony, the witness may be rehabilitated

Question 5

Explain how the memory of a witness can legally be refreshed, and list requirement for introducing a document under the Past Recollection Recorded Rule.

Answer 5

The basic rule is that anything can be used to refresh memory. Witnesses must, however, be able to testify from memory and not merely memorize material used to refresh their memory.

Past Recollection Recorded Rule:
A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

Question 6

State the Opinion Rule, and explain how it applies to testimony of lay and expert witness.

Answer 6

Opinions of the witness are not admissible because it is the function of the jury, or judge if the case is tried without a jury, to analyze the evidence.

Lay witness: are not allowed to state their opinions

Expert witness: are allowed to give their professional opinion.

Question 7

When is an attorney allowed to call an expert witness in a criminal case? What arguments must be made to the judge before a specific type of expert witness may be called to the stand?

Answer 7

1. The jury needs the help of an expert
2. There is a recognized ares of expertise that applies
3. The person called to testify has the appropriate background to qualify as an expert.

The expert will be subjected to voir dire to establish his or her qualifications before testifying unless the opposing side is willing to accept the witness without a challenge.

Question 8

What is the purpose of voir dire of an expert witness? Why are the qualifications of an expert witness given to the jury?

Answer 8

To establish their qualifications and show they have the necessary education & experience before testifying unless the opposing side is willing to accept the witness without a challenge. Voir dire is done without the jury present.
Qualifications are given to the jury to help them decide how much weight should be given to the testimony.

Question 9

Explain what hypothetical questions are, and tell how they are used.

Answer 9

Hypothetical questions ask the witness to draw conclusions based on the facts given in the question.
Example:
Based on your microscopic examination of the slides containing lung tissue specimens that were prepared during the autopsy, is it your professional opinion that the victim was dead prior to being placed in water?

Question 10

Give three examples of how an expert witness can be impeached.

Answer 10

If they always work for the same side. Example is if a Dr is hired solely by the prosecutor, the jury might not believe them.
If the fee they were paid is appears to be too large the jury might think they are swaying their testimony to favor the side paying them.