Witnesses are the lifeblood of any case – criminal and civil. With three different kinds of witnesses, lawyers should be sure to determine early on the type of witness so that they may interview and cross-examine them effectively and assist the judge or jury in their determinations.
Within a case, you can have expert witnesses, lay witnesses and character witnesses.
An expert witness will be called upon in a case with technical, scientific or other specialized knowledge to help the factfinder understand the evidence. Persons who are called upon to speak regarding particular facts are the most common types of witnesses. Referred to as lay witnesses, these people are testifying only about the facts or their observations of an incident. Character witnesses testify on behalf of a person most often concerning their ethical qualities, demeanor or personality. Character witness testimony is primarily used when the party’s morality or integrity is under question.
No matter the witness’ role in the case, their demeanor needs to be assessed early on to determine their utility in the case.
Cooperative & Truthful – This type of witness is a boost to any case. An honest and cooperative witness is a person who has relevant information and is willing to share it. Savvy attorneys always question a person’s willingness to share information. Do they have hidden motives? What is their relationship to the case?
Once a person has been determined to be genuinely cooperative, attorneys should seek as much information as possible. The statements obtained should then be compared to other witness statements to ensure no inaccuracies.
Hostile & Untrustworthy – These types of witnesses purposely lie in an attempt to disrupt the investigation. If it has been determined that this person is lying, the next step should be to find out why. Are they related to any people involved in the case? Do they have a distrust of police or the legal system? Discovering their motivation for lying is a successful way to work around their deceit. Once the reason for their deception has been determined, investigators and attorneys can work backwards and attempt to build leads.
Shy – A shy or timid witness must be handled carefully if either party wishes to receive a statement. It is recommended a rapport is built with these types of witnesses before questioning them. If they feel safe or trust the attorney this can often lead to a statement. Shy or timid witnesses can be victims of sex crimes, foreigners or even people distrustful of police or the political system.
Fearful & Reluctant – A fearful witness has information, but may be reluctant to share it. These types of witnesses are reluctant to getting involved in the case for fear of retribution from perpetrators or any other involved party. This is often the story surrounding gang or organized crime cases.
Attorneys or investigators must be patient when working with these types of witnesses. In general, these people are not against sharing information if they feel safe.
Disinterested & Unwilling – These witnesses make it obvious they do not want to participate in the trial. One of the more difficult witness types to interview, silent or disinterested witnesses should still be questioned. All too often attorneys write down a name and number then chalk it up to a lost cause, which can be a mistake.
Even a simple statement describing where they were and that they did not see what happened can be beneficial to a case. If this witness returns with a different story later in the trial, in can be refuted.
Understanding your Witness
Every witness is different because every person is different. They draw from different backgrounds, including personal, professional and educational. In most legal cases, both parties must provide witness lists, which reveals all people who will be called upon to testify. When the discovery portion of the trial begins, both the prosecution and defense can question the other party’s witnesses under oath to get a feeling for each witness’s demeanor, which can reveal how they plan to answer questions later when the trial begins. Stepan Kasimian M.D.