Witnesses

SIGNIFICANCE: Under the common law, witnesses should speak only what they know firsthand and testify only as to facts. That is, they cannot offer opinions, make inferences, or draw conclusions.

The rule requiring firsthand personal knowledge has been preserved by the Federal Rules of Evidence (FRE) . Because the meaning of the key terms “fact” and “opinion” is often unclear, the FRE have also liberalized the admissibility of lay opinions. Lay opinions are now allowed whenever they would be helpful, provided that they are rationally based on the witness’s perceptions. The latter requirement simply means that the witness must have firsthand (personal) knowledge of the matter at issue. Thus, witnesses are allowed to say that a person was (or appeared to be) angry, kidding, dying, strong, sober, or drunk. Speed may be estimated, even sometimes in such terms as fast or slow. Other examples include “It was a sturdy fence” and “The apple was rotten.”

The requirement of firsthand knowledge should not be confused with the hearsay rule. If a witness states “Jack shot Mary” but knows this only from others, the witness violates the firsthand personal knowledge rule. If the same witness in the same circumstances testifies that “Joe told me Jack shot Mary,” the firsthand rule is not violated, but the hearsay rule may be violated. Hearsay rules govern the admissibility of a declarant’s out-of-court statements. Accordingly, hearsay may be recounted in court pursuant to an exception or exemption; in such instances, the lack of firsthand knowledge would affect the weight rather than the admissibility of the witness’s testimony.

Incompetency or Disqualification of Witnesses

Competent witnesses are those who testify to what they have seen, heard, or otherwise observed. Trial courts recognize two kinds of witness incompetencies that result in automatic disqualification: lack of personal knowledge and failure to take the oath or affirmation regarding telling the truth.

In the past, witnesses have been ruled incompetent because they have personal interests in cases, past criminal convictions, drug or alcohol intoxication or addiction, marital relationships with involved parties, or mental incapacity. Moreover, persons who are too young may be disqualified as witnesses. Such matters are mainly deemed factors to consider for whatever they are worth in the realms of relevance and credibility.

Persons who are to be offered as witnesses are often subjected to a special series of questions (often outside the presence of the jury) to ascertain foundational facts. This series of questions is to determine whether prospective witnesses understand the duty to tell the truth, can distinguish fact from fantasy, and have the ability to communicate meaningfully with the jury. Children over six years old are rarely found to be incompetent. Although state laws may differ, the FRE generally treat children, at least in principle, no differently from other witnesses. These rules allow for the exclusion of child witnesses only for compelling reasons, which must be something other than mere age.

Witness Preparation and Sequestration

There are almost no formal limits on bona fide efforts to prepare a prospective witness for taking the witness stand. Thus, in preparing to testify, a witness may review documents, recordings, notes, and other pieces of documentation. The witness may also be rehearsed by attorneys but not prompted to tell an untruth.

In most jurisdictions there is a process called “sequestration,” whereby witnesses may be prevented from listening to other testimony in the case. Questions have arisen as to whether this bars trial witnesses from reading transcripts, attending depositions, listening to oral reports of what transpired at hearings, or watching televised portions of trials. The Oklahoma bombing trials of the late 1990s raised the question as to whether families of the deceased victims were permitted to view the trial if they planned to give victim-impact statements at the death-penalty sentencing phase. The trial judge, upheld by the court of appeals, concluded that they could not. The US Congress then legislated, specifically with retroactive effect, that such witnesses in such cases could view the trials.

Additionally, the FRE exempts from sequestration witnesses who are parties, the designated representatives of organizations that are parties, or essential persons, such as experts needed at counsel’s table to assist the attorneys. This rule also requires the judge to enter a sequestration order upon an attorney’s request or upon the judge’s own motion. The judge’s order serves to clarify the scope of witness sequestration in a particular case.

Procedure for Examining Witnesses

The basic pattern of trials after jury selection and the opening statements of counsel is that plaintiffs present their cases through witnesses, documents, and other evidence. Then the defendants present their cases, which may consist of both denying facts asserted in the plaintiffs’ cases and establishing affirmative defenses.

A witness presented at either phase will normally be examined directly by the attorney presenting the witness, by the attorney from the opposing side during cross-examination, by the proponent to redirect examination and repair the damage caused during cross-examination, and finally by the opposing attorney in a second cross-examination to repair the damage of the proponent. In the absence of an exercise of the judge’s discretion, repair is the only acceptable purpose of the last two sequences. Furthermore, repair may be severely limited or disallowed completely by the judge when the contribution of additional examination would be minimal. Further redirects and recrosses are always possible if necessary.

The order of presentation of witnesses in both civil and criminal trials is basically the same. The most significant difference is that the US Constitution’s Fifth Amendment privilege against self-incrimination prohibits the prosecution from calling criminal defendants to the stand as witnesses. In civil trials the plaintiff’s lawyers often call defendants before other witnesses.

On direct examination, attorneys usually must ask for and get yes-no or short answers. However, many jurisdictions give the judge discretion to permit extended narratives to the extent that they help develop the witness’s testimony. Leading questions, those that suggest the answer, are generally improper on direct examination, with exceptions for forgetful, older, young, hostile, or adverse witnesses. In the case of forgetful, older, or young witnesses, leading questions serve a valid function in refreshing their memory or directing their attention. When lawyers call hostile or adverse witnesses to the stand, the danger that the witness will consciously or unconsciously acquiesce to the examiner’s version of the truth is minimal, and leading questions are thus allowed. When witnesses are hostile to the examiner, the need for forcing them to answer the lawyer’s questions is greater than the danger that leading questions present.

In common-law jurisdictions, there are restrictions not only on leading questions but also on those deemed argumentative, misleading, compound, or otherwise multifaceted. The FRE treat these matters by reposing power in the judge to supervise witness examinations. Specifically, the FRE exhort the judge to take reasonable measures to promote effectiveness and efficiency in ascertaining the truth and to protect witnesses from harassment or undue embarrassment.

There are two views as to the permissible scope of cross-examinations. The restrictive rule confines the cross-examiner to matters within the scope of direct examination. The wide-open rule allows any material issue in the case to be explored. The federal rules adopt the restrictive rule but allow the judge to make exceptions. Convenience of witnesses and trial efficiency often dictate that the judge exercise discretion regarding the proper scope of a witness’s cross-examination.

Witnesses’ Character and Credibility

By introducing personal testimony about a witness’s character, it is possible to judge whether the witness has testified accurately, lied, or made a mistake; whether a person did or did not commit rape; whether a person was or was not careful; or whether a person turned a corner in an automobile in a particular way. However, such character-type propensity evidence is sometimes prejudicial, misleading, too time-consuming, or unfair. Accordingly, there is a general ban on the use of character-type propensity evidence unless it fits special rules for special exceptions. The exceptions are many.

It must be shown that reputation or character witnesses are familiar with the reputation of the person about whom they are testifying. Thus, in the case of reputation testimony, courts normally require that the witness and the subject have lived or done business in reasonable proximity to each other for a substantial period in the fairly recent past. Also, the reputation reported must be the subject’s reputation in the relevant community and relatively current.

A prerequisite for the admissibility of personal opinions about another’s propensities is that the person providing personal opinions had some substantial recent contact or relationship with the other person that would furnish a reasonable basis for a current opinion. Weaknesses in these foundational elements affect the weight rather than the admissibility of character-type propensity evidence. Rules of impeachment govern the efforts to test the opposing witnesses’ credibility.

Everyone’s Duty to Testify

Two kinds of witnesses may appear at a trial or deposition: ordinary lay witnesses or expert witnesses. A properly subpoenaed witness who fails to show up at the time and date specified is subject to arrest. Except for the reimbursement of costs of coming to court, ordinary witnesses may not be paid to testify. Because of the truth-seeking function of the court, parties and other witnesses can be compelled to give testimony, even if it is damaging to themselves or others. Accordingly, a person normally cannot prevent another person from disclosing confidences, secrets, or other matters. However, privileges are a narrow exception to these general rules. The privileges for confidential communications in the attorney-client, physician-patient, psychotherapist-patient, and husband-wife contexts are examples of such exceptions. Privileges operate to exclude relevant evidence in the name of some other social objective. Most true privileges are designed to promote certain kinds of relationships and particularly to promote confidential communications within these socially desirable relationships.

Bibliography

Bergman, Paul.Transcript Exercises for Learning Evidence. St. Paul, Minn.: West Publishing, 1992. Practical workbook containing various questions, answers, and judicial rulings from a variety of civil and criminal cases. This book is helpful for understanding the legal propriety of common objections.

‗‗‗‗‗‗‗. Trial Advocacy in a Nutshell. 3d ed. St. Paul, Minn.: West Publishing, 1995. This book and the book Bergman coauthored with Berman-Barnett, listed below, are easy-to-read, helpful, and inexpensive paperbacks. They review the fundamentals of direct examinations and cross-examinations and offer numerous examples.

Bergman, Paul, and Sara J. Berman-Barnett. Represent Yourself in Court: How to Prepare and Try a Winning Case. 2d ed. Berkeley, Calif.: Nolo Press, 1998.

Graham, Kenneth. Casenotes Law Outlines: Evidence. Santa Monica, Calif.: Casenotes, 1996. Offers discussions of the evidence rules on which common objections are based.

"Legal Guide for the Forensic Expert." National Institute of Justice, 7 Aug. 2023, nij.ojp.gov/nij-hosted-online-training-courses/law-101-legal-guide-forensic-expert/introduction-law-101/expert-witnesses. Accessed 11 July 2024.

Loftus, Elizabeth F. Eyewitness Testimony. 2d ed. Cambridge, Mass.: Harvard University Press, 1996. Discussion by a psychologist of research on conditions influencing the reliability of eyewitness testimony.

Rothstein, Paul F., Myrna Raeder, and David Crump. Evidence: State and Federal Rules in a Nutshell. 3d ed. St. Paul, Minn.: West Publishing, 1997.

Technical Working Group for Eyewitness Evidence. Eyewitness Evidence: A Guide for Law Enforcement. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 1999. Practical guide for law-enforcement professionals in evaluating testimonies of witnesses.

"Victims and Witnesses: Understanding Your Rights and the Federal Court System." US Attorney's Office, District of New Jersey, 19 Jan. 2023, www.justice.gov/usao-nj/victim-witness/handbook. Accessed 11 July 2024.