Witness testimony is critical in federal criminal jury trial proceedings. Witnesses have the ability to describe their recollection of the events in question, and confirm or deny facts of the case. Ultimately, witness testimony has the power to sway the jury’s verdict.
In a federal criminal trial, there are two types of witnesses. Lay witnesses are permitted to testify based on first-hand knowledge regarding the facts of the case. An expert witness is qualified by knowledge, skill, experience, training or eduction to provide a scientific, technical or other specialized opinion about the evidence or fact issue.
A witness must be legally competent to testify. Competency requires: (1) the witness to be able to communicate to the jury; (2) the witness must testify under oath or affirmation; (3) the witness has the ability to recollect the events; and (4) the witness’s testimony is based on personal knowledge (unless an expert witness). The judge, not the jury, decides whether a witness is competent to testify. Lay witnesses are presumed competent, however the competency of an expert witness must be proved by the proponent of the expert witness.
Counsel will call a witness for direct examination. During direct examination, the attorney will question the witness regarding their knowledge of the circumstances in question. Typically, counsel is not permitted to ask leading questions on direct examination of their own witness, which means the questions cannot lead the witness to a specific answer, although a few exceptions apply.
Following direct examination, opposing counsel will have the opportunity to cross examine the witness. Opposing counsel is permitted to ask leading questions unless cross examining their own witness. For example, if the government calls a defense witness on direct examination, such as the defendant’s brother, the defendant’s counsel is not permitted to ask leading questions on cross examination.
The scope of cross examination is usually limited to only those subjects covered on direct examination and impeachment. Impeachment refers to the credibility of the witness. The jury is responsible for weighing the credibility of the witness, therefore counsel typically attacks a witness’s credibility on cross examination.
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