Most criminal cases don't go to trial. As such, witness testimony is something of a mystery for most lay people. When a case goes to trial, or when the circumstances of a case call for a contested hearing, witnesses are called. People often get frustrated with witness testimony, mostly because they don't understand what is going on with witness testimony. Below are some witness testimony basics for your information.
Understanding the Order of Witnesses
The order of the witnesses is something lawyers spend considerable time on before a trial or hearing. First, lawyers want to offer the trier of fact (usually a jury, but sometimes a judge) a compelling narrative. This requires that the facts unfold in a certain order so they make sense and the jury isn't distracted while they try to string together seemingly random facts.
Of course, in addition to trying to present the evidence in an order that makes sense, lawyers must be sensitive to the schedules of their witnesses. Some law enforcement officers, for example, may work the night shift. As such, it is common courtesy to schedule these officers first thing in the morning, rather than, say around two o'clock in the afternoon -– prime sleeping time for those working 11 pm to 7 am. Some witnesses may be testifying in more than one courtroom on a given day. Other witnesses may have childcare issues or other issues that must be addressed.
There are a number of factors that impact the order in which witnesses are called. In almost every case, however, the government's witnesses testify before the defense witnesses.
Understanding the Questioning of Witnesses
When witnesses are questioned, there are two approaches to questioning. As a general rule, the form of the question is dictated by who calls the witness. For example, if the government calls a law enforcement officer to testify about their involvement in a case, they will generally ask open-ended questions, like the following:
- What did you observe?
- Why did you take those actions?
- How did you determine the driver might have been under the influence of alcohol?
Because these are open-ended questions, they require more than a one- or two-word answer. The party who calls a witness performs a direct exam. This means they ask open-ended questions, allowing the witness to testify about the who, what, where, when, how, and why of the matter. A well-crafted direct examination includes short questions and long answers.
Once a lawyer has asked all the questions they intend to ask a witness, they “pass the witness” for examination by the other side. On television and in the movies, this is generally done by a lawyer exclaiming, “Your witness!” to the other lawyer. In real life, it isn't usually that dramatic.
Once the first lawyer is done, the lawyer for the other side has the opportunity to ask questions. The other lawyer typically does not ask open-ended questions. Instead, on cross-examination, the questions actually suggest an answer. They are usually designed to elicit a yes or no response. They might look like this:
- You didn't actually see my client driving, did you?
- When you asked my client to get out of the car, you did so with the specific intention of having an extended opportunity to watch him stand up and walk next to the car, didn't you?
- According to your police report, you believed, given the lateness of the hour, my client may have been out drinking, is that right?
Understanding the Function of Witnesses
Different witnesses have different functions. Lay witnesses offer facts for the jury to consider. Some, like an arresting officer. Others, such as the officer who supervised the towing of a vehicle, may not have very many facts to contribute. It is the job of each individual prosecutor to ensure they have enough facts to prove their case.
Experts are allowed to offer both facts and opinions for the jury to consider. While a lay person may not be able to opine about another's blood alcohol concentration, for example, an expert would be allowed to testify to this, provided they had the proper foundation, background, training, and experience to be qualified to offer such an opinion.
Understanding Areas of Attack for Lay Witnesses
Lawyers can attack a lay witness's possible motive to lie, potential areas of bias, or possible mistakes made.
Understanding Areas of Attack for Expert Witnesses
Expert witnesses can be attacked based on the following areas:
- Their education
- Their experience
- Their training
- Their potential bias
- The fact they only testify for the prosecution (where applicable)
- Problems with their methodology in a given case
- Problems with the scientific method applied generally
- Prior problems within their section of the laboratory
- Prior problems within other sections of the laboratory, as well as
- Prior problems within their forensic discipline.
This is not an exhaustive list. Rather, they are only a few examples of lines of attack.
If You are Facing DUI Charges
If you are facing DUI charges, don't face them alone. Atlanta DUI lawyer Richard Lawson dedicates his entire practice to representing people accused of DUI crimes. Let Richard Lawson put his extensive experience to work for you. Call us today at 404-816-4440 to set up an appointment. We look forward to meeting with you and reviewing the evidence in your case. From the reason your car was stopped to the roadside testing administered to the breath or blood test results, we leave no stone unturned in our quest to determine whether the government will be able to meet their burden of proof in your case.