CREDIBILITY OF A WITNESS

The credibility of a witness is his or her worthiness of belief, determined by the following considerations: Character, acuteness of powers of observation, accuracy and retentiveness of memory, general manner in giving evidence, relation to the matter before the court, appearance, deportment, and prejudices, general reputation for truth in his or her community, a comparison of his or her testimony with other statements made by him or her out of court, and a comparison of his or her testimony with that of others.

^{The creditivity} of a witness may be attacked in cross-examination, or by evidence, to show that the witness has a bad reputation for truthfulness. Evidence that he or she was convicted in court of a crime involving moral turpitude and, particularly, perjury may be admitted. Testimony may be introduced to the effect that the witness has a bad reputation for truthfulness in his or her community or place of employment, and his or her reputation is considered to be a matter of fact. Testimony concerning his or her character is not allowed, because the law holds that this is a matter of opinion.

DISQUALIFICATION OF A WITNESS

Insanity or intoxication may disqualify a witness insofar as such condition affects the validity of the testimony. A witness proven senseless with drink at the time of the happening for which testimony is desired is barred on the grounds of intoxication. A witness suffering from mental infirmity is nevertheless competent to testify if the witness understands the moral importance of telling the truth and has the mental capacity to observe, remember, and describe accurately the facts under inquiry. The court (judge or law officer) decides whether a witness is competent to testify.

IMPEACHING A WITNESS

The testimony of a witness may be impeached in any of three ways:

l The facts to which the witness testifies may be disproved.

l It may be proved that the witness made contradictory statements during the present trial.

l An attack may be made on the witness' general credibility (worthiness of belief).

In impeaching a witness for making contradictory statements, he must be asked specifically if he made the contradictory statement just read to him. He cannot be asked, merely, if he made a different statement. Also, the contradictory statements must have been made during the current trial.

As a rule, although the side that called the witness may introduce evidence of a contradictory nature, it may not impeach him or her. An exception to this rule is made when (1) the witness appears to be hostile to the side that called him or her, or (2) counsel who called the witness, because of the nature of the case, had to call the witness but was surprised by his or her testimony.

DEPOSITIONS AND AFFIDAVITS

The testimony of a witness, as a general rule, is given orally. Necessity may, however, require that testimony be given by deposition. It is well to remember that after the action begins (charges have been signed), any deposition permitted to be taken stands on the same footing as testimony at a trial. What, then, is a deposition? A deposition is a written declaration, under oath or affirmation, made by a witness in the presence of the adverse party so that necessary cross-examination may be made.

A deposition must be taken in the presence of a competent official, usually a court officer or notary public. If a crime is committed or injury or damage occurs, parties concerned find it advisable to have the testimony of various witnesses reduced to writing as prospective evidence in later legal actions. From the standpoint of accuracy alone, depositions are helpful. A witness who testifies immediately after an event takes place is more likely to remember the facts than some months later. Because the witness is placed under oath and because there is an opportunity for cross-examination, depositions are not in violation of the hearsay rule.

An affidavit differs from a deposition in that it is a statement made without giving the other side an opportunity to ask questions of the declarer. Although an affidavit is a sworn statement, it ordinarily is inadmissible in evidence of the truth of matters therein stated, because it is a hearsay statement and is one-sided. Exceptions may be made in affidavits dealing with certain issues, such as character of the accused, loss of an original document, or matters in extenuation of a possible sentence, unless such exceptions appear to affect injuriously the substantial rights of the parties.

Testimony given in a former trial of the accused may be admitted if the accused had been tried on substantially the same charges. Also, such testimony is admissible if it can be proven that the witness cannot attend the present trial because he or she is dead, very ill, insane, or that he or she is prevented by the accused from attending. However, the mere fact that the witness is now beyond the jurisdiction of the court or that his or her whereabouts are unknown does not render such former testimony admissible.

EXAMINATION PROCEDURE

LEARNING OBJECTIVES: State the order in which witnesses are examined. Define leading-, double-, and forbidden questions. State the general rule regarding opinions and describe when notes can be used in court. Explain verification of testimony and weighing of evidence. Describe the cross-examination technique used in court.

The examination of a witness proceeds as follows: First, the direct examination by the party who called him; second, cross-examination by the opposite party; third, redirect examination; fourth, re-crossexamination. The court may allow additional interrogation of a witness if further questioning is desirable.

All facts desired by the party who called the witness should be brought out in the direct examination. Objection may be raised by the other side if an attempt is made to bring out additional facts at a later time in the trial. On taking the stand, the witness must identify himself and (if possible) the accused.

LEADING QUESTIONS

Leading questions usually are not allowed on direct examination. Leading questions are questions that either suggest the answer desired of the witness or, embodying a material fact, are susceptible of being answered by a simple yes or no. A leading question, except on cross-examination, should be excluded upon proper objection. For example, if a knife is introduced in evidence, a witness should not be asked on direct examination whether it is the knife with which he saw the accused stab A. He should be asked first whether he recognizes the knife, and if he answers that he does, then he may be asked where he saw it and what was done with it.

To shorten the court proceedings, leading questions are sometimes allowed. For example, if the accused admits that he was arrested as a deserter on a certain day, at a certain place, by a policeman, the latter may be asked directly whether he arrested the accused on that day and at that place. Leading questions are allowed also when the witness appears hostile to the party who called him, or when the witness makes an erroneous answer, apparently caused by forgetfulness or a slip of the tongue, that a suggestion would set right. Under certain circumstances it is necessary to ask a leading question to enable the witness to better understand what is required. Such an instance may occur when he is called on to contradict a statement made in his absence by another witness.

DOUBLE QUESTIONS

Double questions are not permitted. An example of a double question is: "Did you see the accused with a bundle?" Actually, a double question is made up of two separate questions. The first is: "Did you see the accused?" The second is: "Did he have a bundle?"

FORBIDDEN QUESTIONS

A witness is not obligated to answer forbidden questions. Three classes of such questions are:

1. Questions involving state secrets. These include any question detrimental to the public interest, as well as classified military information.

2. Incriminating questions. This group includes questions that make the witness subject to criminal prosecution.

3. Degrading questions. These questions tend to degrade or disgrace the witness. A witness may refuse to answer a degrading question unless it deals with a material issue of the trial.

When a witness protests on the grounds of any of the foregoing forbidden questions, the court rules on whether the witness must answer the question or remain silent. If a witness was tried previously on the matter, and the conviction become final, the claim of privilege is disallowed because there is no further danger.

OPINIONS

It is a general rule that a witness must state facts and not opinions or conclusions. There are three main exceptions to this rule:

1. A witness may testify about opinions in matters based on daily observation and experience. For example, a witness may give an opinion of a person's sanity, sobriety, identity, or resemblance to another. Or a view regarding that person's physical or temperamental condition may be expressed when such an opinion is based on frequent contact with the person in question.

2. Another exception involves a question regarding who wrote or signed a document. Anyone acquainted with the handwriting of the supposed writer may give an opinion about whether it was written or signed by the writer.

3. The opinions of experts in a specialty are admissible in cases requiring a knowledge of such a specialty. Such witnesses must be proven to be actual experts in their line. Physicians, chemists, fingerprint experts, and ballistics specialists are often called as expert witnesses.

NOTES

Ordinarily, a witness whose memory fails on a particular point may be allowed to refer to notes. Thus, a Master-at-Arms normally is allowed to refer to his or her notebook regarding such items as the serial number of a gun, the exact dimensions of rooms, and the like. In such an instance, notes are not evidence; they merely serve to remind the MA of matters that can be testified to from memory.

Notes may be submitted directly as evidence when the witness cannot recall something but is able to testify that an accurate note was made. Both this paragraph and the preceding one point out the necessity for the MA to maintain accurate, complete, and legible notebooks.