Chapter 5
Witnesses—Lay and Expert
Criminal Evidence
6th Edition
Norman M. Garland
Witnesses—Lay and Expert
o A person becomes a
potential witness by
having personal
knowledge about
the facts of a case to
be tried. Personal
knowledge may
have been acquired
through something
seen, heard,
smelled, or touched.
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Compelling the Testimony
o An individual does not always have a choice
whether or not to appear as a witness.
o Anyone with information that may be of value
in arriving at the truth in a trial may be
compelled to be a witness.
o This power to compel a witness to attend a
trial is based on two clauses appearing in the
Sixth Amendment to the Constitution of the
United States: the Confrontation and
Compulsory Process Clauses.
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The Confrontation Clause
The Confrontation Clause provides that
"the accused shall enjoy the right . . . to
be confronted with the witnesses against
him" and the Compulsory Process Clause
states that "the accused shall enjoy the
right . . . to have compulsory process for
obtaining witnesses in his favor."
oBoth of these rights are available to
the accused in federal and state
trials.
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Pointer v. Texas
In this case the Court stated:
o “We hold today that the Sixth Amendment's
right of an accused to confront the witnesses
against him is likewise a fundamental right and
is made obligatory on the States by the
Fourteenth Amendment . . . .”
o “The fact that this right appears in the Sixth
Amendment of our Bill of Rights reflects the
belief of the Framers of those liberties and
Safeguards that confrontation was a
fundamental right essential to a fair trial in a
criminal prosecution.”
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Attendance of Witnesses
o In order to ensure that a witness
appears to testify, most lawyers will
compel witnesses' attendance by
issuing a subpoena.
o A subpoena is an official document
issued by either a judge, the clerk of a
court, or an attorney and delivered to,
or "served upon," the witness.
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Subpoena Duces Tecum
o If the person has papers, records, or
other physical evidence needed for the
trial, the person will be served with a
subpoena duces tecum.
o This subpoena also directs the person to
bring specific material to court.
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Witnesses: Failure to Appear
o If a witness does not appear in
accordance with an oral request, it is
not a violation of a court order, and no
penalty can be imposed.
o A witness's failure to appear in response
to a subpoena, however, is a violation
of a court order and subjects the
violator to the full range of judicial
sanctions
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Methods of
Subpoenaing Witnesses
o In most jurisdictions, the attorneys
(either the defense attorney or the
prosecutor), issue their own subpoenas
to compel the appearance of a witness.
o In a few jurisdictions, the clerk or judge
must issue the subpoena and the
attorneys' duty is to furnish a list to the
clerk of persons who are needed as
witnesses.
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Serving of the Supoena
o Although in most
states anyone may
serve a subpoena, in
criminal cases the
subpoenas are usually
given to an officer of
the court, who may be
a deputy sheriff, a
constable, or a
marshal, to be served
on the person named
in the subpoena.
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McGraw-Hill
Out-of-State Witnesses
o A subpoena is valid only within the state
in which it is issued.
o Consequently, in the past, when a
material witness in a criminal trial
resided in another state, compelling an
appearance created an obstacle.
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Uniform Act to Secure the
Attendance of Witnesses
o This act permits a court to issue a subpoena to an outof-state witness and to have the subpoena sent to a
court in that state.
o The witness will be commanded to appear in that court,
where a hearing will be held to determine whether he
or she is a material witness.
o If it is determined that the witness is material, he or she
will be ordered to appear in the court where the
original subpoena was issued.
o A witness who fails to appear as ordered may suffer the
same contempt sanctions as a witness within the state.
o Again, the witness is entitled to compensation for
appearing.
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Segregation of Witnesses—
The Rule on Witnesses
o The reason for segregating or excluding
the witnesses is to prevent witnesses
from hearing each other's testimony
and being affected by it, either
intentionally or unintentionally.
o The rule on witnesses is designed to
prevent the most overt form of
witnesses' collaboration.
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Two Categories of Witnesses
Witnesses have been classified into two
categories:
(1) the lay or ordinary witness
(2) the expert witness
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Lay or Ordinary Witness
o The lay witness is a person who has some
personal knowledge about the facts of the
case and who has been called upon to
relate this information in court.
o The law enforcement officer will usually fall
within the category of the lay witness.
o The lay witness is permitted to testify about
facts only and, with few exceptions, may
not state personal opinions.
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Methods of
Interrogating Witnesses
With respect to direct examination, the
Federal Rules of Evidence have taken the
traditional view that it is improper for an
attorney to ask leading questions of the
witness.
o Unless an exceptions applies, direct
examination must be by non-leading
questions.
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Questioning the Witness
o A leading question is one that suggests to the
witness the answer sought by the questioner.
o The law prefers open-ended, or non-leading,
questions on direct examination because
leading questions are by definition
suggestive.
o Leading questions could induce a witness to
inadvertently adopt the questioner's suggestion.
This is especially likely where the attorney posing
the leading question prepared the witness to
testify, and the witness has some relationship with
the party represented by that attorney.
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Statutory Guidelines
FRE provides for exceptions to the rule
prohibiting leading questions on direct
examination:
1) with respect to undisputed preliminary or
inconsequential matters
2) when a witness is hostile, unwilling, frightened,
or biased
3) with respect to a child or adult witness with
communication problems
4) with a witness whose recollection is exhausted
5) when laying a necessary foundation under
certain circumstances
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Witness Interrogation:
The Narrative Form
o In this method, the witness is requested
to state in his or her own words what
happened in a particular instance.
o This permits the witness to tell the story
in a logical sequence, normally making
it easier for the jury to follow evidence
presented in this manner.
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Cross-examination and the FRE
FRE 611(c) says: "Ordinarily leading
questions should be permitted on crossexamination."
oNo question may be asked on crossexamination unless its subject has
been brought up during direct
examination.
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Cross-Examination’s
Primary Benefit: Impeachment
o Perhaps the most important purpose of
cross-examination is to persuade the
jury to disbelieve the testimony of a
witness, or to impeach the witness.
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Impeachment
Impeachment is a process or a result that
diminishes the believability of a witness's
testimony or destroys it. There are five basic
methods of impeachment:
(1) by contradiction
(2) by proof of bad character for truthfulness
(3) by proof of prior inconsistent statement
(4) by proof of bias or motive to falsify
(5) by proof of lack of or diminished witness
capacity
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Methods of Impeachment
Contradiction
Impeachment by contradiction by crossexamination consists of asking the witness
about facts that are directly in opposition to
those testified to on direct examination.
o For example, assume a defendant is charged with the unlawful
sale of cocaine and further that he takes the stand and testifies
denying the transaction and stating that he has never had any
contact with any drugs.
o If the defendant had been tested for drugs as a condition for
his release pending trial a year before and the test was
positive, on cross-examination, the prosecution would be
permitted to contradict the accused's testimony by inquiring
about the fact that the accused had tested positive for
cocaine.
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Crimes of Bad Character
for Truthfulness
The crimes that can be shown to impeach
for bad character for truthfulness are:
oA crime involving dishonesty.
oAny crime punishable by imprisonment in
excess of one year.
oA crime involving dishonesty includes
perjury, fraud, or embezzlement.
oA crime punishable by imprisonment in
excess of one year, including most
felonies.
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Impeachment by Bad
Character for Truthfulness
Impeachment by proof of bad character
for truthfulness can be done in only two
ways:
o First, the witness can be impeached by
proof that he or she was convicted of
certain crimes.
o Second, the witness can be impeached by
questioning on cross-examination about
specific bad acts that involve dishonesty
but did not result in a conviction.
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Impeachment by Prior
Inconsistent Statement
o Impeachment by prior inconsistent
statement consists of the crossexaminer asking the witness about the
fact that the witness previously made
statements contradicting the testimony
given on direct examination.
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Impeachment for Bias
oImpeachment for bias may take many different forms.
Any interest the witness may have in the case or its
outcome may be investigated on cross-examination to
show bias or motive to falsify.
oA relationship between the witness and a party, or a
financial connection such as employment, or hatred or
dislike for a party, are all examples of provable bias.
o The law finds that bias is almost always, provable in
any case. Particularly, ethnic or racial bias has
been held to be provable.
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Impeach a Witness by Showing a Lack
of Capacity or Impaired Capacity
Witness capacity consists of:
operception
omemory
onarration
osincerity
oPoor eyesight, hearing, memory, or
ability to speak effectively are all
matters that can be attacked in many
persons.
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Witness Must Answer Questions
o A witness must answer all questions the
judge permits, whether the questions
are on direct examination or crossexamination.
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Contempt of Court or Perjury:
A Dearth of Choices
o If a witness absolutely refuses to answer a question
and if the question is not incriminating, the witness
can be held in contempt of court in addition to
having his or her entire testimony stricken from the
record.
o Moreover, if a witness knowingly makes a false
statement about a matter material to the case or
swears or affirms the truth of a statement previously
made that he or she knows to be untrue, the
witness may guilty of perjury.
o Perjury may be a misdemeanor or a felony carrying
corresponding criminal penalties of fines or
imprisonment.
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Opinion Testimony of Lay
Witnesses
o Opinion testimony of lay witnesses is
restricted to those opinions or
inferences that are "rationally based on
the perception of the witness and . . .
helpful to a clear understanding of the
witness'[s] testimony or the
determination of a fact in issue."
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Guidelines on Opinion
Testimony
o The law has set guidelines by which a lay
witness may relate information in the form of
an opinion.
o The opinion testimony must be rationally
based on the witness's perception. In other
words, the opinion must be one that a person
could normally form from observed facts.
o The opinion testimony must be "helpful to a
clear understanding of the witness‘s testimony
or the determination of a fact in issue."
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Proper Areas of Opinion
Testimony
o identity
o handwriting
o quantity
o value
o weight
o measure
o time
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o distance
o velocity
o form
o size
o intoxication
o veracity
Additional Areas of Opinion
Testimony: We all have some!
oage
ostrength
oheat
ocold
osickness
ohealth
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odisposition
otemper
oanger
ofear
oexcitement
ogeneral character
Requisite Laying of a
Foundation
o Before a lay witness may express an opinion, a proper
foundation must be laid to prove that the witness had
personal knowledge of the facts upon which the opinion is
formed.
o Personal knowledge may be shown by evidence in the form
of the witness's own testimony.
o A witness may not testify that something smelled like
marijuana unless it is established that the witness, from prior
experience, knows what marijuana smells like.
o Attention is called to the fact that the opinion of the lay
witness may be only about something that the witness
observed, heard, or smelled and not in answer to some
hypothetical question pertaining to the witness's opinion of
the matter.
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Commonly Encountered
Opinions in Criminal Matters
o
o
o
o
o
o
State of Emotion
Speed of Vehicles
Distances
Sobriety or Intoxication
Age, Identity, and Physical Condition of a Person
Opinions on Miscellaneous Matters Such as
Weight, Color, and Value
o Character of a Person
o Sanity
o Opinions About Handwriting
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Terminology of the Lay Witness
o Terminology alone does not convert a witness's
admissible factual testimony into inadmissible opinion
testimony.
o In general conversation, people frequently start a
statement with such phrases as ”In my opinion," ”It is
my belief," or "I believe."
o At first glance, this would imply that the person using such
phrases is expressing a conclusion. In reality, the witness may
be stating an actual fact.
o When a witness uses such a phrase, the attorney
conducting the examination may have to question the
witness further to clarify that a fact is being stated and
not a conclusion.
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Expert Witnesses
o To assist the jury in its search for the truth
and in the best interests of justice, the
services of the expert witness often
come into play.
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Expert Witnesses and the FRE
o Under the FRE, an expert may testify if
the scientific, technical, or other
specialized knowledge he or she
provides will assist the jury in
understanding the evidence or in
determining a material fact.
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Definition of Expert Witness
o An expert witness is a person skilled in
some art, trade, science, or profession.
o An expert must have either knowledge,
skill, experience, training, or education
that is beyond and above that of the
average person.
o In this respect, therefore, an expert is in
a position to assist the jurors because
they do not have this background.
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Foundations and the Expert
Witness
o Before an expert may testify, the judge
must first determine whether the witness
is qualified as an expert in the particular
field by knowledge, skill, experience,
training, or education and that the
testimony will help the jury arrive at the
truth.
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What “makes” an expert?
o It is possible to become an expert
witness through self-instruction and
experience.
o Many of the crime-laboratory experts,
better known as criminalists, fall within
this category.
o There are certain fields in which there
are few courses available or in which
there has been very little written.
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The Foundation for Expert
Testimony
o In order to utilize the testimony of an expert witness,
three requirements must be established to the
satisfaction of the trial judge.
o First, the subject matter of the expert's proposed
testimony must be relevant in the sense that it will
assist the jury "to understand the evidence or to
determine a fact in issue."
o Second, the expert's field must be one requiring
scientific, technical, or specialized knowledge.
o Third, the witness must be shown to have the
background necessary to qualify as an expert in the
field.
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The Overruled Frye Test
o Under the Frye test, only such expert
testimony as was based on a scientific
methodology "generally accepted as
reliable in the relevant scientific
community" was admissible.
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Daubert v. Merrell Dow
Pharmaceuticals and Kumho Tire v.
Carmichael
o The Daubert test requires the trial judge
to determine that the subject of an
expert's testimony has achieved the
stature of "scientific knowledge" based
on five factors.
o In Kumho, the Court extended Daubert’s
holding to “technical and specialized
knowledge.”
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The Five Tests of DaubertKumho
(1) testing of the theory or technique
(2) peer review and publication of the theory or
technique
(3) the particular scientific technique's known or
potential rate of error
(4) The existence and maintenance of
standards controlling the technique’s
operation
(5) the theory or technique's "general
acceptance"
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The Criminalist or the Forensic
Specialist
o A criminalist is a specialist in the
application of science to crime and the
law.
o When the criminalist makes a bullet
comparison or compares a latent
fingerprint with a suspect's, the expert's
opinion is necessary in the trial since the
average person is unable to analyze
such findings without assistance.
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Qualifying the Expert
o Therefore, if the criminalist has had
formal education in ballistics and
fingerprint analysis, this information
would be elicited first by the prosecutor
on direct examination.
o However, even if the witness has had no
formal education, the prosecutor can
qualify the criminalist as an expert by
eliciting information about the witness's
special training and experience.
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Qualifying the Expert: Voir Dire
o The qualification of an expert witness places a
burden upon the side producing the expert
witness to prove qualification.
o In the typical criminal case, the qualification
process involves preliminary questions asked of
the witness about education, experience, training
and work in order to establish the witness's basic
qualifications.
o In addition, the attorney will want to qualify the
witness as persuasively as possible by going
beyond the essential qualifications in order to
give the witness as much stature as possible in
the eyes of the jury.
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The Final Arbiter—The Judge
o The final determination whether a
person qualifies as an expert witness or
not is made by the trial judge, and
unless the decision is beyond all reason,
it will not be overruled on appeal.
o Once the witness is accepted by the
judge as an expert witness, the weight
given to the testimony is determined by
the jury.
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Testimony of the Expert Witness
o The opinions and conclusions of the
expert witness may be based upon
information gained in one of three
ways.
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The First Way
o First, specific information possessed by
the expert, gained through examination
of a particular piece of evidence, may
be the basis of her opinion or
conclusion.
o Such opinion testimony may be elicited
simply by asking the expert what
conclusions were reached after
examining the evidence.
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The Second Way
o Second, the expert may rely upon data
supplied from another source in any form, as
long as it is within the usual practice in the
field to rely on such data.
o Moreover, under FRE 703, the facts or data
upon which the expert bases an opinion need
not be admissible at trial, provided that such
data or facts are of a type reasonably relied
upon by experts in the particular field.
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Finally, the Third Way
o Third, the expert may be presented with
a set of hypothetical facts from which
the witness is asked to draw
conclusions.
o This type of presentation is not used
frequently in criminal cases.
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Experts and the Use of
Hypothetical Questions
o Although hypothetical questions have
historically been criticized “as
encouraging partisan bias . . .” and as
“complex and time consuming,” the FRE
continues to allow the use of
hypothetical questions.
o It is within the discretion of the trial
judge whether to allow such questions.
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How Hypothetical Questions
Work
o An expert may be a witness even though
he or she has not examined any evidence
and has no knowledge, either directly or
indirectly, about the case.
o Instead, a set of hypothetical facts, data,
or opinions that have some relation to the
matter at issue will be given to the expert,
who will then be asked for an opinion,
based on his or her experience and
knowledge, of what would happen given a
set of circumstances.
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Kinds of Expert Witnesses
o Medical Examiner or Coroner
o Document Examiner
o Fingerprint Expert
o Skid-mark Expert, Speed Expert, and
Accident Reconstructionist
o Bookmaking, Narcotics, and Other
Specific Types of Crimes Experts
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Kinds of Experts
o Criminalist or Forensic Scientist
o DNA Expert
o Footprint Expert
o Psychologist and Psychiatrist
o Polygraph Examiner
o Voiceprint Expert
o Photographer
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Photographers
o Except for certain scientific
photographs, such as the spectrograph,
micrograph, or x-ray, a photographer
does not have to be an expert in the
field of photography to have
photographs admitted in evidence.
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Voiceprint Expert
o Individuals have been accepted by the courts as
experts in the method of voice identification
known as voiceprints.
o This method of voice identification consists of
identifying or eliminating an unknown voice
among several known by both listening to the
voices and visually inspecting a spectrogram.
o Scientifically described, acoustical
spectrography is a branch of science that
consists of composing the voice or sound into
harmonic components and obtaining a visual
pattern of the sound. This pattern is called a
spectrogram.
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Polygraph Examiners
o Polygraph experts allege that the polygraph
is now beyond the experimental stage and
is a recognized scientific instrument
capable of detecting truthfulness and
falsehood.
o Although the courts have agreed that there
has been substantial progress in improving
the equipment and the operator techniques
used in administering polygraph tests, very
few courts will allow evidence of polygraph
results to be admitted for any purpose.
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Psychologists and Psychiatrists
o It is recognized that doctors specializing in
psychiatry or psychology may state their
opinion on the sanity of a person, but a
perplexing problem arises as to whether a
psychologist or psychiatrist may state an
opinion on the sanity issue.
o It is known that sanity is a matter of mental
illness, thus a psychologist or psychiatrist
who is trained and experienced in mental
illnesses may qualify as an expert on mental
illness and express an opinion on the sanity
of a person.
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Footprint Experts
o Footprints are admitted in evidence
when their similarity to the shoes worn by
a defendant justifies an inference that
the prints were made by his or her shoes.
o Often there is not much that science can
add to a comparison of a cast or
photograph made of a footprint found at
a crime scene with the shoe of a
suspect.
o Thus, similarities in any peculiar markings
between the cast or photograph and the
shoe, as well as a comparison of the size,
may often be made by the jury with as
much proficiency as an expert witness.
Spike Mafford/Getty Images
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DNA Experts
o The area of DNA evidence requires the assistance of
highly-educated and trained experts.
o Use of DNA evidence requires scientific knowledge,
and therefore it would be impossible for an officer or a
person, by way of training or experience only, to give
an opinion with respect to such evidence.
o It is necessary to have experts educated in
the fields of genetics, biology, chemistry
and other sciences to testify as DNA
experts concerning such evidence.
Usually scientists, those with advanced
degrees in the sciences, will be required to
testify, as this lends more credibility to their
testimony in the eyes of the jury.
PhotoDisc/Getty Images
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Criminalist or Forensic Scientist
A few of the more commonly encountered
ones are in the fields of:
oballistics
ospectroscopic examinations
othe examination of hairs and fibers, soils
otoxicology
oglass and glass fractures
oblood and other body fluids
opaints and chemicals
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Bookmaking Experts
o Officers who have had extensive
experience in working on particular
types of crimes may become qualified
as crimes experts with respect to those
particular crimes.
o For example, officers who work on
bookmaking cases may become
qualified as experts in what is
considered to be material and
paraphernalia used by bookmakers.
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Narcotics and Other Specific
Types of Crimes Experts
o Officers experienced in drug investigations
may qualify to testify on drug users' methods of
taking drugs.
o They may also express their opinion about
scars that they believe to have been made by
injections or whether certain paraphernalia
found at a crime scene were used by those
engaged in the use or sale of narcotics.
o The narcotic content of a pill or powder,
however, would have to be determined by a
person skilled in the field of chemistry.
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Skid-Mark Expert, Speed Expert,
and Accident Reconstructionist
o Serious motor vehicle accidents are a
fact of life in all societies. In many
instances, there are few, if any,
eyewitnesses to automobile accidents,
so that determination of the speed of
the vehicles involved in accidents is not
easily made, yet the speed is often an
important factor of a case.
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Fingerprint Expert
o The services of the fingerprint expert come into
the picture when it is necessary to make a
comparison between a latent fingerprint at a
crime scene and the prints of
a known suspect to determine
whether the latent print is that
of the suspect.
o If an identification is made,
the examiner will in most
instances be called as a
witness to prove the basis
upon which an identification
was made.
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Medical Examiner or Coroner
o In homicide cases, the cause of death must be
established. This is invariably done by the
medical examiner or coroner.
o The examiner will be called as an expert witness
by the prosecution to give an opinion of the
cause of death as a result of an examination of
the body.
o It is only after the coroner or medical examiner
has made a complete examination of the body
that he or she can conclude that the death was
due to stabbing and not to a heart attack, or that
a death was due to strangulation and not to
accidental drowning.
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Document Examiner
o A document examiner is usually skilled in
making comparisons of handwritten
documents and documents
produced by all other means.
o Such a person would be able
to qualify as a handwriting
expert and an expert in the
field of document
examination generally.
Siede Preis/Getty Images
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The Handwriting Expert
o The handwriting expert is seldom acquainted with the
person whose writing he or she examines. Instead, the
expert's examination is purely a comparison of two or
more writings.
o The expert may compare two checks in
an effort to determine whether they were
written by the same individual.
o Or the expert may have a sample of the
known handwriting of a person to
compare to a questioned check or
document in an effort to form an
opinion whether the questioned
document was written by the person
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who gave the known handwriting sample.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Refreshing Recollection or
Memory
o If a witness, whether lay or expert, is
incapable of testifying for the simple
reason that his or her memory has
failed, an attorney may refresh the
witness's memory.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Refreshing Recollection & the
FRE
o FRE 612 deals only with the use of a writing
to refresh memory.
o FRE 611(c) allows for the use of leading
questions:
o “As discussed earlier, leading questions are
permitted on direct examination when
necessary to develop the witness's testimony
and are ordinarily permitted on crossexamination. Accordingly, refreshing
recollection of a witness may occur either upon
direct examination or cross-examination.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
What May Be Used to Refresh
Recollection
o notes
o memoranda
o reports
o photographs
o newspaper articles
o objects
o song recordings
o aromas
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Past Recollection Recorded
o A common situation at trial, especially
for witnesses who testify about matters
recorded in extensive reports or who
testify often, is that the witness's memory
cannot be refreshed as previously
described.
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Technical Aspects to Past
Recollection Recorded
There are Six technical (legal) aspects to the
matter of past recollection recorded.
oFirst, before the writing may be used as
past recollection recorded, the witness
must be shown to have exhausted
present recollection by failing to have
recollection refreshed.
oSecond, the writing must have been
prepared by the witness, at the witness's
direction, or adopted by the witness.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Technical Aspects to Past
Recollection Recorded
o Third, the witness must be in a position
to swear that, at one time, the witness
had knowledge of the contents and that
the contents were true and correct.
o Fourth, the evidence in the form of the
writing is hearsay.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Technical Aspects to Past
Recollection Recorded
o Fifth, the evidence is admissible hearsay
because there is an exception to the
hearsay rule for past recollection
recorded.
o Finally, the evidence, though admissible,
may only be read to the jury; the writing
is not admissible unless offered by the
opponent.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Investigative Report as a Means of
Refreshing Recollection and Past
Recollection Recorded
o An officer's investigative report, much
like the officer's notebook, may be used
to refresh the memory of the officer
while he or she is testifying as a witness.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Report: Means of Refreshing
Recollection & Past Recollection
Recorded
o The report need not have been prepared
by the officer or at the officer's direction for
purposes of refreshing his or her memory.
Accordingly, the report could be one
prepared by a police stenographer as
dictated by the officer or the report could
be one prepared by another officer.
Additionally, the report need not have
been made at or near the time of the
events that are reported.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.