The essence of any criminal case comes down to witness testimony in trial. Everything that happens in your case will ultimately hinge on what the witnesses can and cannot testify to. Even if your case never goes to trial, the strength and weaknesses of any defense and of the prosecution’s case will all depend on witness testimony.
There are different types of witnesses. Some witnesses will testify about what they saw. These are referred to as “eye witnesses”. Other witnesses may be called upon to admit business records (referred to as a “custodian of records”), others may be called upon to give an expert opinion, such as the causation of a car accident or the chemical contents of a substance. These witnesses are referred to as “expert witnesses”. Other witnesses, referred to as “rebuttal witnesses”, may be used to rebut (or challenge) the claims made by an opposing party’s witness. Even the defendant is considered a witness when he or she testifies on his/her own behalf.
The term “witness” simply refers to a person who takes the stand and testifies. It does not mean he/she actually saw something with their eyes.
Whether your criminal case concerns a drug offense, a sex offense, domestic violence, a financial crime, or any other type of criminal offense, the bottom line is that prosecutors will need to prove their allegations with the testimony of witnesses who will take the stand and tell a piece of the prosecution’s story at trial. Typically, this will include police witnesses, independent civilian witnesses, alleged victims, expert witnesses, and others.
Before trial, the negotiations that occur between your criminal defense lawyer and the prosecutor will be based in part on the expected testimony of the witnesses. The more your defense lawyer can attack the prosecution’s witnesses, the stronger your case will be. Prosecution witnesses can be weakened in a number of ways:
- Inconsistent testimony
- Hesitant testimony
- Lack of personal knowledge of the subject at hand
- Testimony that contradicts prior sworn testimony (such as deposition statements)
- Claims that are refuted by other evidence
- By making impossible, questionable, or outlandish claims
- Convictions for felonies or crimes involving dishonesty or moral turpitude (like theft or fraud)
- Motives to lie/exaggerate
- Having a demeanor/tone/attitude that is inconsistent with honesty
Sometimes a criminal defense lawyer will attack a prosecution witness not only for what that witness has said, but for the things he or she did not say. For example, in a DUI case, a police officer may testify that the defendant was obviously drunk when he responded to the scene, but he may not be able to testify that he saw the defendant driving because he arrived after the fact. If the prosecution cannot prove the defendant was “driving or in actual physical control of the vehicle,” the case must be dismissed by the judge.
The art of criminal defense comes down to identifying what can and cannot be proven at trial by the prosecution, even if your case never goes to trial. The prosecution’s ability to prove its allegations and your defense lawyer’s ability to defend you will depend greatly on the testimony of witnesses.
When your criminal defense lawyer analyzes your case, these are some of the questions he or she should be asking:
- Does the alleged victim know you? Are you related to the alleged victim?
- Does the alleged victim have any reason to make false accusations against you?
- Is the alleged victim motivated by anger, jealousy, or revenge?
- Does the alleged victim have a financial motivation to falsely accuse you of a crime?
- Has the alleged victim exaggerated something that is only partially true?
- Has the alleged victim lied in part and told the truth in part to make an accusation against you?
- Is the alleged victim motivated by divorce, child custody proceedings, or other litigation?
- Is the alleged victim mentally stable?
- Does the alleged victim have a history of making false allegations?
- Does the alleged victim have a criminal history? Has he or she been convicted of a felony or crime that involves dishonesty?
- Has the alleged victim made similar accusations about other people in the past? Does the alleged victim have a pattern of past false accusations?
- Did the alleged victim delay his or her report of the crime to police? If so, does the alleged victim have a valid reason for waiting to report the crime?
- Are there any independent witnesses to the alleged offense or any other relevant part of your case?
- Do independent witnesses contradict or confirm the alleged victim’s claims? If so, do these witnesses have any bias for or against you?
- Do the independent witnesses have any credibility issues? Were they in a position to make the observations they claim to have made?
- Did the independent witnesses see all or part of the alleged incident?
- Did the independent witnesses observe the incident in context or out of context?
- To what extent is the testimony of independent witnesses relevant to your case?