The First Witness
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The prosecutor has to become familiar with the facts of the crime, talk to the witnesses, study the evidence, anticipate problems that could arise during trial, and develop a trial strategy.
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The prosecutor may even practice certain statements he will say during trial. One of the first steps in preparing for trial is talking to witnesses who could be called to testify in court. A witness is a person who saw or heard the crime take place or may have important information about the crime or the defendant. Both the defense and the prosecutor can call witnesses to testify or tell what they know about the situation. What the witness actually says in court is called testimony. In court, the witness is called to sit near the judge on the witness stand.
In order to testify, witnesses must take an oath to agree or affirm to tell the truth. There are three types of witnesses:. To avoid surprises at trial and to determine which of the witnesses to call to testify, the prosecutor talks to each witness to find out what they may say during trial. These conversations will help the prosecutor decide whom to call as a witness in court.
Another important part of trial preparation is reading every report written about the case. Based on information in the reports and the information from witnesses, the prosecutor determines the facts of the case. Prosecutors must also provide the defendant copies of materials and evidence that the prosecution intends to use at trial. This process is called discovery, and continues from the time the case begins to the time of trial.
These people included convicted criminals, very young children, the mentally ill, and spouses of an accused person. The record of a convicted person can still be used as character evidence. There are three classes of exceptions; children, persons with low mental capacity, and spouses. For each of these classes of people, it is up to the opposing counsel in court to make a challenge and establish the incompetence of the witness. There is a presumption that the witness possesses both capacity and responsibility to give evidence.
To testify, a witness needs only the ability to recall what they have seen and heard, and be able to communicate what they recall. To communicate, the witness must be able to understand and respond to questions, and the witness must demonstrate the moral capacity to tell the truth. Moreover, the determination of competency is guided by the following rules established in case law:. A witness who states that they may not tell the truth is still competent to testify. When considering the issues of witness competence and compellability, an investigator must keep in mind that the evidence collected from certain witnesses, such as spouses, children, and persons of low mental capacity, may be subjected to these rules.
That said, during the investigation, it remains within the purview of the investigator to assess the information and evidence collected, and to consider that evidence when forming reasonable grounds to believe and take action. When considering the nature of the information and evidence received, it is not up to the investigator to assess whether the court will accept the information or not.
If the person giving the information or evidence is assessed as being a credible witness, the investigator should consider that material and give it fair weight in forming reasonable grounds for belief. Although the circumstances vary, it is a common occurrence that crimes are reported by a perpetrator posing as a victim or a witness.
Crimes, such as break-and-entry and motor vehicle thefts, are quite often insurance frauds. Other crimes, including murder, have also had the offender make the report as a witness to explain their presence at the crime scene and avoid being considered as a suspect. Being aware of this possibility requires investigators to undertake a process of validating the reported crime and assessing the information being reported by witnesses or victims as a routine part of their investigation.
To do this, an investigator should be attentive to questioning the report and the evidence presented to assess:. Even with careful attention to these questions, it may not be immediately possible to confirm the validity of the crime being reported, and the investigation must proceed to take the report as true until other evidence emerges to prove otherwise.
The advantage of investigating this kind of falsely reported crime is that the suspect is presenting themselves as a witness or victim. As such, all of their statements may be taken and will be admissible against them later, without voir dire , if deception in their statement becomes provable. Until some distinct piece of incriminating evidence emerges, the investigator is under no obligation to caution or warn the witness.
Each new statement can afford opportunities to investigate further in search of evidence of the lie that will prove deception. In addition to determining if a person is an eyewitness, a corroborative witness, an independent witness, a competent witness, or a compellable witness, every person who is a witness during an investigation needs to be subjected to a credibility assessment. This is called witness credibility assessment.
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One of the most significant issues to be considered in assessing a witness is determining if they are a witness, or if they are a suspect posing as a witness. More likely than interviewing false reporters of crime, investigators find themselves interviewing a variety of ordinary people who truly have been the victim of a crime, have witnessed a crime, or witnessed some aspect of a criminal event.
The level of confidence an investigator can have in a witness will be contingent on several factors relating to who the witness is, the abilities of the witness, and the circumstances of the event. I have a gun. Put all the cash from your till into an envelope and give it to me. Do not press the alarm or I will shoot you. The customer standing immediately behind the robber suddenly notices that the teller looks frightened and sees she is placing the contents of her cash drawer into an envelope.
The third customer in line remains unaware and is talking on the telephone to his wife about their grocery list.
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The robber grabs the cash-filled envelope from the teller and turns to run out of the bank. The customer immediately behind him steps out of his way, but he bumps into the third customer still talking to his wife. In this scenario, an investigator could expect to get a detailed account of the events from the bank teller who was engaged in the event and aware of the crime from the outset. The customer immediately behind the robber become aware of the crime and was making observations half way into the robbery.
This customer could likely provide some significant details. The third customer in line was never aware that a crime was in progress and, other than perhaps providing a limited description of a man who bumped into him, his value as a witness may be negligible.
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This does not mean these witnesses will be of no value but that their casual observations need to be identified and recorded as soon as possible. As much as witnesses are a critical component of the criminal investigation process, they can also become a critical threat to the accuracy and integrity of evidence gathering. Unlike cases where a witness is motivated to intentionally fabricate or exaggerate their account of events, the truthfully incorrect witness has no malicious intent and will provide their version of the events with a genuine belief that what they are saying is true and accurate.
For investigators, the truthfully incorrect witness can become a paradox capable of misleading the outcome of the investigation resulting in a guilty suspect going free or an innocent suspect being arrested and charged. This anomaly of truthfully incorrect witnesses is an issue that investigators must remain mindful of. Witnesses are human and humans are fallible. The importance of the investigator being mindful of a truthfully incorrect witness cannot be emphasized too strongly. More recently yet, Rose and Beck note that eyewitness testimony accounts for more wrongful convictions than anything else.
It has also been established that witness recall can be affected by stress Morgan et al, and by alcohol Oorsouw et al, in complicated ways. One of the negative dynamics that can occur in an investigation where there are multiple witnesses is the contamination or influence of witness statements by a dominant witness.
This influence can occur when witnesses to an event have not been separated before any interactions or conversations have occurred between the witnesses. These dynamics are possible in almost all cases, and an investigator must always be mindful that this potential exists. It is also possible that a dominant witness will boldly and sometimes aggressively state their version of the events, which can cause other less confident or less sophisticated witnesses to question their own perspective. In such cases, a less dominant witness may change their version of the events or even omit observations to conform to what the dominant witness stated.
Most susceptible to this kind of influence are very young witnesses, elderly witnesses, or witnesses who have timid personalities. On some occasions, where there is an imbalance of power or status in a personal relationship, or even in a subordinate organizational relationship, witnesses may conform to the more powerful witness out of fear of repercussions or hope of favour.
In some cases, the dominant witness has a vested interest in having their version of the events stated their way, and the dominant influence towards the other witnesses is intentional and implicitly threatening in its tone. In cases where witnesses have interacted prior to being interviewed, each witness should be interviewed in seclusion from the others.
One of the many unpleasant dynamics of criminal activity is when the police attend the scene of a crime and witnesses, or even victims, refuse to cooperate with investigators. Sometimes, these uncooperative persons are part of the criminal lifestyle and are not willing or interested in cooperating in the justice system. The only strategy for police in these cases is to gather as much forensic evidence as possible in relation to the event and to seek charges where sufficient evidence can be found.
Although these uncooperative witnesses may believe they are not required to participate in the criminal justice system, it is entirely possible to subpoena an apparent witness to attend court to be questioned regarding the criminal event they witnessed. If that witness refuses to answer questions in court, it is possible for the judge to find them in contempt of the court and to sentence them accordingly. That said, this rarely happens. Arriving at a crime scene, investigators are often confronted with a cast of characters who may be victims, witnesses, or suspects in the matter to be investigated.
In the case of an active event, where immediate in-depth interviews are not possible, it is important to:. This simple question serves several purposes for the investigator. First, it shows that the investigator is not making any investigative assumptions based on what is visible to him or her at first glance. With this question, the person being asked is prompted to supply their own version of the event, as they saw it. This pure version will assist the investigator in developing a picture of the event, and it will provide a context allowing the investigator to classify the speaker as a victim, witness, suspect, or an uninvolved party.
If the person the investigator questioned turns out to be the perpetrator, and the investigator has no other evidence that suggests this person should be a suspect, any statement made by that person would likely be considered a spontaneous utterance and may be admitted in evidence without a voir dire. For example, consider a situation where an investigator arrives at the scene of a street fight where a man has been fatally stabbed. Once this self-incriminating statement has been made, the suspect would need to be immediately arrested and provided with the Charter warning and caution before any further statements could be pursued through additional questioning.
Clearly, once a suspect is identified, they can no longer be considered as a witness. If no one is immediately identifiable as a suspect at the scene of an event, it is reasonable for the investigator to proceed with classifying the persons present as possible witnesses. As discussed earlier in this chapter, to classify the witnesses, the investigator must consider the nature of the evidence that the witness can provide:. Interviewing a witness is not just a simple matter of hearing their version of the events.
There are many factors that can come into play in determining how credible a witness is. Taking the witness statement should be conducted using the best technology available given the circumstances. If audio and or video recording devices are not available, or obtaining them would cause an unreasonable delay in getting the witness statement, a written statement should be taken. No matter how the witness statement is recorded, it should be the goal of the investigator to obtain the best, uninfluenced, and unbiased version of events from a witness.
Like the threat of conformity being induced by a dominant witness, a witness can also be influenced by leading questions asked by an investigator. Some witnesses are so eager to assist in solving the crime that they will attempt to guess the answer to a leading question instead of admitting that they do not know the answer. The caution here is to avoid asking leading questions. Leading questions are questions that a witness might be able to infer the answer by the nature of the wording.
An example of a leading question would be:.
This leading double question can be answered yes or no, and it also supplies the witness with a significant amount of information that the witness can infer about the details of the event. These may be details that they would not have previously known.
data.adtags.pro/preoperative-suggestions-to-speed-your-recovery.php From this question, the witness could infer that Bill was shot in the head, the weapon used was a revolver, the suspect in the shooting was Larry, and the revolver was picked up from somewhere. Tell me what you saw. Taking a statement in this manner is known as taking a pure version statement. As the witness recounts their best memory of the event, the investigator must resist the temptation to intervene and ask clarifying questions on the points being revealed. As the witness recounts their pure version of the events, the investigator should be taking notes on points to be clarified once the entire statement is completed.
Those questions should remain as open-ended as possible. There are many different techniques and strategies for witness interviewing that cannot be addressed in this short book as part of an introduction to investigations. The best advice for new investigators for the interviewing of a witness is learning to be patient and allow the witness to tell their story in their own time and in their own way.
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Avoid the human tendency of trying to assist and interact with the speaker by asking questions, filling in the blanks, and clarifying things while the story is being related. The more effective interview technique is one where the witness can exhaust their memory and relate the events to the best of their ability without interference and the contaminating influence of questions that might derail their train of thought. As discussed earlier, it sometimes happens that a witness or a reporting victim will turn out to be the perpetrator of a crime.
In these cases, allowing the person to provide their full uninterrupted statement can produce incriminating indicators or even evidence of involvement. There is a tendency for criminals who fabricate their report of a crime to make sure they are adding information in their statement that helps eliminates them as a suspect. This can include unsolicited alibis for their whereabouts and their activities at the time of the reported event.