Preparation: Discovery & Witnesses
There are many stages in a criminal case, and the rules of procedure can vary widely, depending upon whether the trial is being held in State or Federal Court. The Sixth Amendment of the United States Constitution guarantees criminal defendants the right to a speedy trial. This means that the individual accused of committing a crime must be brought to justice within a reasonable amount of time.
Each state has their own unique laws that outline the time in which a trial must commence. If the court determines that the delay between the suspect’s arrest and trial date was unreasonable, the case can be dismissed by the judge altogether.
In criminal cases, discovery is the formal process by which the defense and prosecution exchange information that is uncovered during the criminal investigation. Each side has a duty to disclose information according to the rules defined in the state statutes. Many jurisdictions model their discovery procedures after the Federal Rules of Criminal Procedure. Both parties must provide the following:
- Names and statements of witnesses they intend to call
- A list of physical evidence they plan to introduce, such as exhibits, weapons, forensic evidence, DNA results and toxicology reports
- Whether the defense intends to mount an insanity defense
- If the prosecutor has offered a deal to a witness in exchange for his or her testimony
- Any written or recorded statements made by the defendant or co-defendant
- The defendant’s prior criminal records
- All documents including photographs, sketches, phone records, police and coroner’s reports
- Summary of expert witness testimony
Certain pieces of evidence do not qualify for discovery, which include:
- Any reports or documents used by the defendant to communicate with his or her attorney
- Any statements made between the defendant and his or her attorney
- An internal government document used to communicate between a government agent and the attorney for the government
- The actual transcript of the grand jury
If either side fails to disclose evidence during the discovery phase, the judge can order the evidence to be excluded. If the violation was egregious in nature, the offending party can be found in contempt of court.
Witnesses in a Criminal Trial
Both the prosecution and defense teams will take time to prepare their witnesses before trial. They must work with each witness to help them learn how to emphasize their strengths and minimize their weaknesses. Each attorney should educate the witness regarding how he or she will be questioned under cross-examination. The last thing either side wants is for their witness to fall apart on the stand while being questioned. It may be necessary for a witness to be served with a subpoena requiring them to testify if they are reluctant to testify. There are rules regarding how witnesses are handled and what type of witnesses will testify in a criminal case. Some of these are outlined below:
A person who has specialized knowledge obtained through education, experience and skill may be classified as an expert witness. This might include arson investigators, forensic psychologists, crime scene investigators or ballistics experts. These powerful witnesses can bolster the case because jurors consider them highly credible. A battle of the experts can occur when both sides present testimony by similar experts who have opposing viewpoints.
As a criminal case progresses, there may come a time when either the prosecution or defense team need to add a witness. This can happen during the trial when new evidence is discovered. An expert witness may be required to testify regarding the validity of the evidence and how it relates to the case. If a witness becomes ill or dies before their testimony is heard, either side can request a replacement.
Witnesses in Court
Anyone who is a potential witness in a criminal trial may be barred from attending the proceedings until after they testify. The court can order the witnesses to be sequestered in a specific location or ordered to remain outside the courtroom during the trial. The helps to avoid collusion and works to expose any inaccuracies in testimony.
Recently Discovered Witnesses
While the criminal trial is underway, the defense team may still be investigating the case for any new evidence or witnesses that can help their client. During this time they may come across people who originally came forward and reported to police they saw someone other than the defendant kill the victim. If the police did not disclose this and defense finds this witness, they can request the witness be allowed to testify. Sometimes the judge will question the witness before making his or her decision.
There are many reasons a witness disappears before giving testimony. They may have gone into hiding after being threatened and are in fear for their life. It is not unheard of for one side to bribe a witness to disappear because their testimony could hurt their case. Sometimes the prosecution will hold a material witness in custody until it’s time to testify. If a key prosecution witness goes missing, the defense can request that the charges against the defendant be dismissed.
During a criminal trial, a witness may become antagonistic during questioning. When the prosecution calls their witness to testify, they expect that person to provide answers that will help their case. If the witness gives testimony that is contrary to the position of their case, the attorney may request that the judge declare the witness as “hostile”. This means that the prosecutor can now ask leading questions upon direct examination of the witness, whereas this is only permitted during cross-examination.
The criminal defense attorney may wish to instruct a witness about volunteering too much information. They should answer only the questions they are asked. For example, the prosecutor asks the witness, “Do you know what time it is?” He or she responds by saying, “It’s 10:30 am.” The witness should have just said, “Yes” or “No”. Witnesses need to use definitive statements and avoid saying, “I think”, “I believe”, or “In my opinion”. Only expert witnesses are allowed to give an opinion.
Continued: Opening Statements & Motions