Subpoena and Witnesses Closing Arguments

1. Subpoena and Witnesses Closing Arguments Whatever disagreement there may be as to the scope of the phrase “due process of law” there can be no doubt that it embraces the fundamental conception of a fair trial, with the opportunity to be heard. — Oliver Wendell Holmes, in Frank v. Mangum, 237 US 309 (1915)

2. Witnesses • The defendant is entitled to be confronted by witnesses against him/her, as stated by the Supreme Court in California v. Green: [this confrontation] • “…insures that the witness will give his statements under oath thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; • “…forces the witness to submit to cross examination, the “greatest legal engine …for the discovery of the truth” • “…permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.”

3. Witnesses • Most of the prosecution’s evidence to prove guilt beyond a will be through testimony of witnesses. • As indicated the Constitution has been interpreted to afford a defendant right to confront and cross-examine all witnesses against him/her. • however, this right is not absolute • The US Supreme Court examined another aspect of this constitutional right when it addressed the issue of the use of closed-circuit television in child abuse cases in Maryland v. Craig.

4. WitnessesMaryland v. Craig • Before the case went to trial, the state sought to allow judge & jury to view the victim via closed-circuit TV. • the defendant and her attorney not be allowed to physically confront the victim, but would be able to cross-examine • The trial court ruled because of the possible distress that the victims would suffer in seeing the defendant, closed-circuit television would be authorized. • The Court held that the Confrontation Clause reflects a preference for face-to-face confrontations at trial. • but must occasionally give way to considerations of public policy and the necessities of the case

5. WitnessesTypes of Witnesses • There are two kinds of witnesses: • The lay witness is an individual who has some personal knowledge of the facts of the case derived from personal perceptions. • An expert witness is an individual who has knowledge and skill in a particular field that is beyond the knowledge of the average person. • the side calling this witness must qualify him/her as an expert • a jury may either accept or reject the opinion of the expert • Establishing qualifications is done via voir dire.

6. Witnesses • It is not necessary for the prosecution to call every person with knowledge about facts of the case. • but enough witnesses to prove the defendant guilty beyonda reasonable doubt • It is difficult to determine how many witnesses this will take, but a prosecutor will call all witnesses necessary to establish that a crime was committed. • known as establishing the corpus delicti • The prosecutor will decide the sequence of how best to present the facts in a logical, understandable manner.

7. Subpeona • Persons are officially notified to appear in court as witnesses by a legal document known as a subpoena. • issued for attendance of prosecution & defense witnesses • A subpoena may be issued by a judge, prosecuting attorney, clerk of the court, or public defender. • Occasionally, a witness will be commanded to bring books, documents, or other physical evidence to court. • if so, a “subpoena duces tecum” will be issued to the witness, including a description of material the witness is to produce & statement of relevance of the requested evidence

8. Subpeona • It has been held a person owes a duty to society to appear & testify as a witness in criminal cases. • because of this, witnesses generally are not compensated • It is recognized a witness should not suffer undue financial hardship in performing duty as a witness. • most jurisdictions provide for the payment of reasonable expenses to a witness who must travel a great distance • Once a witness has appeared in court, it is common practice to have the judge order the witness back instead of issuing a new subpoena for a new date.

9. SubpeonaWitnesses Failing to Appear • Failure of a witness to appear as commanded can bring about contempt of court charges unless good cause for not appearing can be shown. • A witness may also orally agree to appear, but cannot be held in contempt for failing to be present at the trial. • In the past, as a subpoena was good only within the state issued, there was no way to command the appearance of a witness who was out of the state. • most states have now adopted the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases

10. SubpeonaExcluding Witnesses • Prior to the time any witnesses testify, the judge must decide if witnesses may remain in the courtroom or should be excluded until after they have testified. • The primary purpose for excluding witnesses is to prevent them from trying to corroborate the testimony of other witnesses. • not always done with an intent to falsify, it may be done because one witness may be uncertain of some of the facts • Although excluded, it is almost impossible to keep them from conversing about their testimony. • even though the judge admonishes them against such action

11. Examination of WitnessesThe Oath • Before being testifying, an oath must be administered in which the witness promises to tell the truth. • In the past, these involved a call to deity to assist the oath giver in substantiating truthfulness of statements. • as well as a call for assistance in telling the truth • It was the general belief that, after such an oath, should one falsely testify, divine punishment would result. • and if one did not believe in God, one was considered incompetent to testify • Although most jurisdictions presently do not prescribe wording generally a call to deity is still included.

12. Examination of WitnessesThe Oath • Oaths administered to witnesses today are substantially as follows: • “Do you hereby solemnly swear to tell the truth, and nothing but the truth, in the matter now pending before this court, so help you God?” • While this oath was once with a hand on a Bible, most jurisdictions have dispensed with the Bible. • but the witness is still required to raise his/her right hand

13. Examination of WitnessesAffirmation • Some consider it objectionable to “swear to God”. • in accommodation, courts permit affirmation to tell the truth • The court officer will require the witness to raise the right hand, and will state words to this effect: • “Do you hereby solemnly affirm to tell the truth and nothing but the truth in the matter now pending before this court?” • Whether a witness swears or affirms to tell the truth, both procedures are technically known as the “oath.” • A few legal scholars argue the oath is a waste of time. • since it does not guarantee a witness will testify truthfully

14. Examination of Witnesses • As stated in the Federal Rules of Criminal Procedure, the wording of the oath may be of any nature that will awaken the witness to the necessity of telling the truth. • The witness may be prosecuted for perjury if testimony is intentionally falsified after the oath is administered. • Exceptions to administration of oath are small children and mentally retarded persons • who may not understand the meaning of the oath • If a witness refuses to be sworn, a contempt of court charge can be filed against the witness.

15. Examination of WitnessesDirect Examination •  After the oath, the witness will begin testimony. • facts will be related in the witness’s knowledge of the case • Prior to any statements about the case, the witness will be required to state his/her name and correct spelling. • After the identification the prosecuting attorney will start the examination. • Questioning of the witness by the side that calls him/her is known as direct examination.

16. Examination of WitnessesDirect Examination - Narrative • The prosecuting attorney may request the witness to relate in his/her own words the facts about the case. • referred to as the narrative approach • This permits the witness to tell the story in a logical form so the jury may be better follow the testimony. • Unless the witness is familiar with the rules of evidence, irrelevant material & hearsay evidencemay be included. • or facts related the prosecuting attorney wishes to avoid

17. Examination of WitnessesDirect Examination - Q & A • If a witness is shy or perhaps somewhat reluctant to testify, it may be necessary to revert to the short-question-and-answer procedure. • By asking short, direct questions, the prosecuting attorney has greater control over the facts related. • and can limit the testimony to relevant facts • This form of examination can be time-consuming, and sometimes becomes boring to the jury.

18. Examination of WitnessesDirect Examination - Leading Questions • During direct examination, the attorney may generally not ask the witness leading questions, one that indicates the desired answer to the witness. • For example, the attorney may ask the witness… • “You did see the defendant threaten the victim with a knife, didn’t you?” • clearly, the attorney wants a yes answer • By rephrasing, the witness may be asked… • “Did you see the defendant threaten the victim with a knife?” • while the attorney may still desire a yes answer, that wish has not been indicated to the witness, and may answer yes or no

19. Examination of WitnessesDirect Examination - Leading Questions • Leading questions are not generally permitted because the witness is usually favorable to the side that callshim/her. • thus there may be a tendency to assist that side irrespectiveof the truth if a desired answer is indicated • Limited use of leading questions is permitted in the examination of children, senior citizens, and mentally retarded persons in order to assist them in telling their stories.

20. Examination of WitnessesDirect Examination - Hostile Witnesses • Occasionally, a witness called by the prosecution will display hostility toward the prosecution, making the expected testimony difficult to obtain. • the prosecuting attorney may request the judge to declare for the record that the witness is a hostile witness • If the witness is declared to be hostile, the prosecuting attorney may then ask leading questions. • it is assumed that the witness will answer truthfully, because of the hostility, even though a desired answer is indicated • To be declared a hostile witness, a person must display hostility and uncooperativeness.

21. Examination of WitnessesObjections to Questions • During direct examination by the prosecution, the defense may object to some of the questions asked. • indicated to the judge, who must rule upon the objection • the witness should not answer until the judge has ruled • If the judge believes the objection well founded, he/she will sustain the objection, meaning the witness may not answer the question. • If the judge does not agree with the objection, he/she will overrule the objection & the witness must answer.

22. Examination of WitnessesObjections to Questions • The defense may object to a question for many reasons. • it may call for an answer that would be hearsay information • it may be leading, or require the witness to state an opinion • If the prosecutor asks an improper question or one that calls for information not admissible, unless the defense objects the answer is permitted into the case record. • and generally is not grounds for appeal of a conviction • For this reason, defense attorneys make frequent objections during the trial.

23. Examination of WitnessesObjections to Questions • Occasionally, an overzealous witness will answer a question to which an objection is made before the judge is able to rule on it. • If overruled, no serious consequences result. • other than judge being irritated because he/she didn’t wait • If the objection is sustained, the answer was improperly given, and must be stricken from the record. • and the jury advised to disregard the answer • Knowing the difficulty of disregarding highly prejudicial statements, the judge may declare a mistrial.

24. Examination of WitnessesCross-Examination - Pointer v. Texas • After the prosecutor has concluded direct examination, the defense is permitted to cross-examine the witness. • the primary purpose is to assist in arriving at the truth • it enables the opposition or adversary to challenge the witness’s veracity, accuracy, and prejudices • The right to cross-examination was made mandatoryon the states by the Pointer v. Texas, in which the Supreme Court stated: • “…right of an accused to confront the witnesses against him …is made obligatory on the States by the Fourteenth Amendment.”

25. Examination of WitnessesCross-Examination - Pointer v. Texas • The Court further stated in Pointer: • “And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in a trial” • “…the right of cross-examination is one of the safeguards essential to a fair trial.” • If the defense believes the witness told the truth during direct examination and nothing is to be gained, the right to cross­examine witness may be waived. • cross-examination is at best a dangerous procedure for a defense attorney, as there may more to be lost than gained

26. Examination of WitnessesCross-Examination - Impeachment • If a witness testified falsely during direct examination, made prior inconsistent statements, or has colored the testimony because of some prejudice, these facts may only be disclosed by cross-examination. • Cross-examination is necessary so the jury may disregard the testimony or give it the proper weight. • devaluation of testimony by cross-examination is referred to as impeachment in the field of evidence • Generally, cross-examination is an unpleasant experience for both the witness and the attorney.

27. Examination of WitnessesCross-Examination - Leading Questions • While leading questions may not generally be asked during direct examination, they are permitted on cross-examination, if the attorney feels utilizing them is an advantage. • leading questions are frequently asked during vigorous cross-examination. • The reason these questions are permitted during cross-examination is that usually the witness is not favorable to the side doing the cross-examining, • and the witness will not give a desired answer, even thoughit is indicated, unless it is the truth

28. Examination of WitnessesLimited Cross-Examination • A majority of the states limit the cross-examination to the facts brought out during direct examination. • referred to as limited or restricted cross-examination • witnesses are usually cautioned to confine answers to questions asked during direct examination and not to volunteer additional information • Other states permit the witness to be cross-examined about any pertinent facts in the case within the knowledge of the witness. • known as unlimited or unrestricted cross-examination

29. Examination of WitnessesRedirect and Recross-Examination • After the defense attorney has completed cross-examination, the judge will permit the prosecuting attorney to further question the witness. • known as redirect examination, and must be confined to clarifying facts brought out during cross-examination • A judge will seldom will permit any new material tobe brought forth during the redirect examination. • unless the prosecuting attorney believes that redirect examination will be beneficial, it may be waived • The same sequence may take place with each witness called, and criminal trials can become very lengthy.

30. Examination of WitnessesRefusal to Answer Questions • The witness must answer all questions asked throughout the entire examination. • the exception is that if the answer to a question will incriminate the witness, the witness may refuse to answer • An incriminating answer is one subjecting the witness to prosecution, and the Fifth Amendment provides one may not be compelled to witness against oneself. • All other questions must be answered even though the answer may be embarrassing or life-endangering to the witness or his/her family.

31. Examination of WitnessesRefusal to Answer Questions • Refusal to answer questions occurs more frequently during cross-examination than direct examination. • If a witness persists in refusing to answer a question not incriminating, the entire testimony may be stricken from the record and the jury advised to disregard it. • It is held that a witness may not testify to facts that may be favorable and refuse to testify to those unfavorable. • There are times when the truth is more important than witness incrimination by answering a question. • a witness may be granted immunity from prosecution

32. Examination of WitnessesExamination by the Judge and Jury • Witnesses may also be called by the trial judge if deemed necessary in the interest of justice. • Most jurisdictions permit a judge to question witnesses if such questioning may furnish information not brought forth by the prosecutor or defense counsel. • Most judges will permit limited questioning by a juror if it is felt the questioning is in good faith. • questioning by jurors is generally not encouraged • The judge usually will require the juror to write the question on a slip of paper and he/she will ask it.

33. Examination of WitnessesIntroduction of Physical Evidence • During crime investigation, officers usually discover physical evidence, or objects, pertinent to the crime. • physical evidence may include objects taken during a robbery or burglary and found in possession of a defendant. • In almost all instances, the prosecutor attorney will introduce these objects as evidence to substantiate the officer’s testimony and to emphasize facts of the case. • These physical objects must be introduced by witnesses who can connect the objects with the crime charged. • Once an object is introduced into evidence, a jury may examine it & consider it part of the facts of the case.

34. Examination of WitnessesViewing the Crime Scene • There are times when a judge may feel a jury can better follow testimony of the witnesses if they view the area in which the crime was committed. • Under these circumstances, the judge will order the jury, as a body, to be taken to the crime scene. • in some jurisdictions is considered as evidence of the case • The prosecuting attorney, defense attorney, defendant, and judge must accompany the jury. • It has been established as improper for a jury to view the crime scene without authorization from the judge.

35. Examination of WitnessesProsecution Rests • After presentation of all prosecution witnesses and evidence the believed necessary, the prosecuting attorney will usually state, • “The prosecution rests, your honor. . . .” • This is an indication to those involved in the trial that the prosecution has presented the evidence it believessufficient to convince the jury the defendant is guilty. • beyond a reasonable doubt • In other words, the prosecution rests its side of the case in the hands of the jury, in hope of a favorable verdict.

36. Examination of WitnessesJudgement of Acquittal • After the prosecution rests, the defense may present evidence in its own behalf. • Before doing so, the usual procedure is for the defense to request permission to speak to the judge. • usually granted, to request the jury be excused so a motion can be made for a judgment of acquittal • If the judge permits the motion to be argued, the defense will endeavor to convince the judge the prosecution failed to establish that a crime was committed or that the defendant committed it. • also commonly referred to as a motion for a directed verdict

37. Examination of WitnessesJudgement of Acquittal • The defense attorney may contend that the prosecution failed to present enough evidence to substantiate, or uphold, a conviction on appeal. • If the judge agrees he/she has the authority to take the case out of the hands of the jury and enter a judgment of acquittal. • a bar to further action against the defendant on the charge

38. Examination of WitnessesDirected Verdict • A few states contend a judge does not have the right to enter either a motion of acquittal or a directed verdict. • since the procedure takes the case out of the hands of the jury, who are the exclusive judge of the facts of the case • In such states, if a directed verdict is granted, the judge instructs the jury to return a verdict of not guilty. • The jury is not bound by this direction in some states, may disregard the motion and return a verdict of guilty • The judge may not enter a judgment of conviction nor direct a verdict of conviction. • such would deny the defendant the right to a trial by jury

39. Defense Presentation • If the judge does not agree to a judgment of acquittal, the defense must decide whether to allow the case to go to the jury or if evidence should be presented in behalf of the defendant in an effort to create reasonable doubt. • Generally, if any defense that can be presented, the defendant’s attorney will present evidence rather than take a chance on the jury’s returning a guilty verdict. • If the defendant has admitted guilt to counsel but refuses to enter a plea of guilty, presenting a defense may be a difficult task for the defense attorney.

40. Defense PresentationApproaches • If the charge is homicide or aggravated assault, the defense may attempt to prove self-defense. • If a case of forceful rape, the defense may allege the victim consented to the act of intercourse. • One of the more prevalent defenses is the alibi defense. • A defense attorney will occasionally endeavor to prove the defendant is of such good character that a crime as charged could not have been committed. • not always an easy defense to present • one of the few times a defendant’s record may be introduced

41. Defense PresentationShould the Defendant Testify? • While planning the defense, an attorney must decide whether the defendant should be permitted to testify • often not an easy decision; many factors must be considered • the attorney must consider the impression the defendant may make on the jury while testifying • The defendant is treated the same way as any other witness in most jurisdictions, and witnesses may be impeached by revealing certain past convictions. • being aware of the defendant’s past record of convictions could affect the jury’s verdict

42. Defense PresentationShould the Defendant Testify? • In the distant past, if adefendant did not take the stand, failure to do so could be commented on by the judge & prosecutor as the case was summarized to the jury. • In Griffin v. California, the Supreme Court held such comments are improper, since they tend to force the defendant to be a witness against him/herself. • The Court pointed out a defendant has a constitutional right to remain silent, and permitting comment on the defendant’s failure to testify was a penalty imposed by the courts for exercising a constitutional privilege.

43. Defense PresentationShould the Defendant Testify? • In most jurisdictions, if the defendant takes the stand and fails to explain facts that logically should have been explained, that failure may be commented on by the judge and the prosecuting attorney. • Another problem created for a defense attorney arises when the client insists on taking the stand. • does a defendant have a right to testify in his or her own behalf over the objections of counsel • While not answered in all jurisdictions, a few have held a defendant does have a right to present evidence in his or her own behalf, even over the objections of counsel.

44. Rebuttal by the Prosecution • After the defense has presented its side and rests, the prosecution may present additional evidence. • to meet or rebut that presented by the defense • Rebuttal evidence is permitted because the prosecutor will have no advance knowledge of the approach the defense may take to prove the defendant not guilty. • the defense may have created some new doubt • evidence presented by the defense may not have been based upon actual facts • To allow some testimony to stand unchallenged by the prosecution would be an injustice to society.

45. Rebuttal by the Prosecution • Generally, no new evidence pertaining to guilt of the defendant may be presented during the rebuttal. • The only time additional evidence may be introducedis when new material evidence has been discovered. • The prosecution must be in a position to convince the judge newly discovered evidence was not available when the prosecution first presented its side of the case. • and discovery was not due to carelessness, inadequate investigation, or poor preparation

46. Rebuttal by the Prosecution • The judge may permit the newly discovered evidence to be introduced. • sometimes referred to as the rejoinder or defense rebuttal • After the prosecution has finished rebuttal, the defense may again make a motion for a judgment of acquittal. • If this motion is denied, the next procedure, is either presentation of closing arguments by prosecution and defense or instruction to the jury on the law of the case.

47. Rebuttal by the ProsecutionDeposition • Sometimes a witness is unable to attend court to testify, yet the testimony of that witness is material to the case. • Rather than continuing the trial, an out-of-court written statement, or deposition, under oath, will be taken. • The opposing side must be notified a deposition is to be taken at a particular time, date, and place, so they may be present to cross-examine the witness. • The deposition is usually in a question-and-­answer form much as the testimony would be given in court, and read to the jury at the appropriate time during trial.

48. Closing Arguments • After both sides have presented evidence, the next procedure in most jurisdictions are closing arguments by the prosecuting attorney and the defense attorney. • a summarization of the evidence presented during the trial • Some attorneys feel they have no effect on the jury and are a waste of time, others feel a closing argument may be the difference between losing & winning a case. • There is no limit on the length of a closing argument. • attorneys may take only a few minutes or several days • the judge has the right to limit the time but cannot be too restrictive

49. Closing Arguments • Usual procedure is for the prosecuting attorney to give the closing argument first, followed by the defense. • After the defense has completed its closing argument, the prosecuting attorney may give a rebuttal argument. • some jurisdictions reverse this procedure • It is considered improper for the attorneys to appeal to sympathy or emotions of the jurors, but argumentsare often a dramatic performance that results in an emotional appeal.

50. Closing ArgumentsProsecution • The prosecuting attorney may state the evidence clearly proves that the defendant is guilty of the crime charged. • It is prejudicial error for a prosecutor to state that from personal knowledge, a defendant is known to be guilty • implying information not brought forth during the trial is in his/her possession • The prosecuting attorney has the right to state what the evidence shows and what conclusions are to be drawn. • The adverse party cannot complain if the reasoning is faulty and the deductions are illogical • as such matters are ultimately for consideration by the jury