- 1 What is the most common result of a preliminary hearing?
- 2 What happens at a criminal preliminary hearing Scotland?
- 3 What is a preliminary hearing in PA?
- 4 What types of questions should you avoid when interviewing a witness?
- 5 What to expect in a preliminary hearing UK?
- 6 Can charges be dropped at a preliminary hearing UK?
- 7 Which is the most common plea at arraignment?
- 8 How do you give a good witness talk?
- 9 What makes a great witness?
- 10 What are open questions examples?
What is the most common result of a preliminary hearing?
What to Expect at a Preliminary Hearing – Law Office of Shahin Zamir – Houston, TX A preliminary hearing is a legal proceeding that many people will experience after being charged with criminal behavior. As its name suggests, a preliminary hearing comes before a trial.
- This hearing serves several purposes but the main purpose is to review the charges and evidence involved in the case.
- According to the, Preliminary hearings, or “prelims”, work differently based on the circumstances of each case and the jurisdiction in which the case takes place.
- Not all courts use preliminary hearings in every case and some courts require that prelims must be requested by either the prosecution or defense.
At most preliminary hearings, the prosecution, judge, defendant and defense attorney will gather in the courtroom to consider the charges and evidence. The two sides will present arguments so that the judge can determine if the case should go to trial.
- This is done without the presence of a jury.
- Several outcomes can happen at a preliminary hearing.
- It is possible but rare for a judge to decide that the evidence does not support the charges and the case can be dismissed.
- A more common outcome is for the prosecution, the defense and the defendant to come to an agreement about a plea deal so that a sentence can be passed and a trial can be avoided.
In some cases, the judge will decide that the prosecution has provided sufficient evidence to order the defendant to stand trial based on the charges. The prosecution will present their evidence first. This can include crime scene photographs, fingerprints, photographic or video evidence and eyewitness testimony.
- The evidence phase plays out very much like an actual criminal trial.
- The defense is allowed to cross-examine the prosecution’s witnesses and present evidence of their own.
- In fact, it is possible for the prosecution and defense to reach an agreement to treat the preliminary hearing as an actual trial.
This is done by allowing the prelim to be recorded into the court records. Otherwise, a prelim is not held to determine guilt but to determine if a trial should take place. If you would like to speak to a criminal defense lawyer regarding a preliminary trial, at 713-233-8900.
What are good questions to ask witnesses?
Sample Questions for Witnesses What did you witness? What was the date, time and duration of the incident or behavior you witnessed? Where did it happen? Who was involved?
What happens at a criminal preliminary hearing Scotland?
A preliminary hearing is used to make sure that the defence and the prosecution are ready for the case to go to trial. If they are ready, the court will set a date for the trial to begin. If they are not ready, the case will be ‘continued’.
What is a preliminary hearing in PA?
The preliminary hearing, which occurs three to ten days after the arrest, unless continued or postponed, is normally held before the MDJ who works in the area where the crime took place. There are over 550 MDJ’s located throughout Pennsylvania, except in Philadelphia and Pittsburgh, where they have a Municipal Court System,
The MDJ’s listen to all of the evidence presented by the prosecution and by the defense. At the preliminary hearing, the Commonwealth must present a prima facie case, or in other words, they must show enough evidence that a crime has been committed and that the defendant is most likely the one who committed the crime.
If you are the victim of a crime in which a suspect has been arrested, you will most likely be asked to be a witness at the preliminary hearing. A subpoena will be sent to you by the MDJ or delivered to you by the police department investigating the crime.
- You will have the opportunity to speak with the police officer and/or representative from the DA’s office before the start of the preliminary hearing.
- The MDJ reviews whether there is probable cause to believe a crime was committed and that the person standing in front of the court is the one who committed the crime.
The MDJ then decides if there is enough evidence to send the case to Common Pleas Court, If the MDJ does not agree with the evidence presented by the Commonwealth, the charges are dismissed. A defendant does not need to have a preliminary hearing. The case can go directly to Common Pleas Court, if the defendant waives the preliminary hearing.
What is the most important factor in deciding whether to prosecute?
A) Most important factor in deciding whether to prosecute is not the prosecutor’s belief in the guilt of the suspect, but whether there is sufficient evidence for conviction. If prosecutors have strong physical evidence and a number of reliable and believable witnesses, they are quite likely to prosecute.
What is the first question to ask a witness?
You can start questioning your witnesses, one at a time, by asking them their name and asking them some background information, like how they know the parties in the case. You will then have to get into asking questions about the event they witnessed or any other issue they are there to testify about.
What types of questions should you avoid when interviewing a witness?
Review available information.
|This information may include police reports and crime scene information. It is important for the interviewer to have all information relevant to the case prior to conducting the interview so that the interview can be tailored to elicit the maximum amount of information from the witness.|
Plan to conduct the interview as soon as the witness is physically and emotionally capable.
|Once the witness is capable, any delay in conducting the interview should be minimized as there will be less detailed information available as time goes on.|
Select an environment that minimizes distractions while maintaining the comfort level of the witness.
|Distractions will interrupt the witness?s memory retrieval. Avoid interviewing the witness in an environment where distractions are more likely to occur, such as a place of business. This should be determined with the witness to accommodate his/her schedule and needs.|
Ensure resources are available (e.g., notepad, tape recorder, camcorder, interview room).
|Secure these items prior to the interview so the interview will not be interrupted.|
Separate the witnesses.
|Independent witness statements can be used as corroboration/ confirmation. Witnesses should not hear others? statements because they may be influenced by that information.|
Determine the nature of the witness?s prior law enforcement contact.
|Prior law enforcement contact may include an arrest record, prior victimization, warrants, or any relationship to/with law enforcement personnel. This information can help put any information obtained from the witness into context for the purpose of assessing witness credibility and/or reliability. It also can assist later in rapport development.|
/ol> Summary: Performing the above preinterview preparations will enable the investigator to elicit a greater amount of accurate information during the interview, which may be critical to the investigation.
|IMPORTANT: Clarify that this procedure involves general law enforcement contact, not contact related to this case. The purpose of this procedure is to assess the witness?s credibility.|
|Show Slide 24 >>|
Develop rapport with the witness.
|The development of rapport between the witness and interviewer will make the witness more comfortable during the interview process. Comfortable witnesses will generally provide more information. In the course of developing rapport with the witness, the interviewer can learn about the witness?s communication style (e.g., how the witness describes everyday events as compared with how the witness describes the incident). For example, if the witness appears nervous during the rapport development phase, the interviewer should not necessarily interpret nervous responses to later questions as being fabrications.|
Inquire about the nature of the witness?s prior law enforcement contact related to the incident.
|Prior law enforcement contact related to the incident includes interviews by other officers at the scene, participation in a showup and with whom, and so forth. This information can help put the witness?s comments into context. Do not ask about prior criminal record at this time. The interviewer should ask the witness if he/she has heard any other accounts of the incident (e.g., through the media, from other witnesses).|
|Show Slide 26 >>|
|IMPORTANT: Clarify that this procedure involves contact related to witnessing the incident, Do not ask the witness about his/her criminal record (this type of information should have been obtained during preparation for the interview).|
Volunteer no specific information about the suspect or case.
|Telling witnesses facts about the suspect or case may influence their memories of the incident. The interviewer must ensure that information from the witness is based only on the witness?s memory and not on any information gleaned from the interviewer.|
|Social dynamics between the interviewer and witness.|
|Facilitation of the witness?s memory and thinking.|
|Communication between the interviewer and witness.|
|Sequence of the interview.|
|Show Slide 28 >>|
|Play Audio Cut 3 and Audio Cut 4 (examples of two contrasting interview techniques): Ask students to hypothesize as to why one set of techniques works better than the other.|
|IMPORTANT: Explain the four basic principles of interviewing and why they are essential, Provide examples of how the associated procedures can impact the information obtained.|
|Maintain or reestablish rapport with the witness.|
|Encourage the witness to actively and voluntarily report information, rather than passively respond to the interviewer?s questions.|
Establishing rapport When seeking to obtain information of a personal or intimate nature from a witness, establishing a personal relationship with the witness gains his/her trust. Rapport development will help the witness to feel more comfortable conveying personal information. It can be accomplished by personalizing the interview and by developing and communicating empathy.
|Show understanding and concern. This can be accomplished by asking about the witness?s health, empathizing with the witness?s situation, avoiding judgmental comments, and establishing common ground with the witness.|
|Personalize the interview. The interviewer should treat the witness as an individual and not as a mere statistic. This can be accomplished by avoiding pre-memorized questions that sound programmed or artificial (e.g., ?Is there anything you can tell me that would further assist this investigation??) and referring to the witness by his/her name.|
|Listen actively. The interviewer should ask interactive questions that follow up on the witness?s previous responses, repeat witness?s concerns, lean forward, and make eye contact.|
Active generation of information
|Show Slide 29 >>|
|IMPORTANT: The following information on the four principles should be conveyed or read to the class. Include examples that are supported by audio cuts.|
|Stating expectations. This is important because witnesses may not know what to expect or may have incorrect expectations of their role in the interview. The interviewer should state explicitly that the witness is expected to volunteer information.|
|Asking open-ended questions. These questions allow the witness to do most of the talking during the interview and can make the witness feel more in control.|
|Avoiding interruptions. Interrupting the witness during his/her answer discourages the witness from playing an active role and disrupts his/her memory. Rather than interrupt, the interviewer should make a note and follow up at a later time with any questions that arise during a witness?s narration.|
|Allowing pauses. It is important to allow for pauses after the witness stops speaking and before continuing to the next question. These periods of silence allow the witness to collect his/her thoughts and continue responding, thereby providing a greater amount of information.|
|Minimize distractions. The interviewer should ensure that physical distractions, such as noise or the presence of other persons, are minimized. In addition, the interviewer can encourage the witness to block out these distractions by closing his/her eyes and concentrating on the memory.|
|Encourage the witness to mentally recreate the incident. The interviewer can promote the witness?s efficient recollection of the incident by instructing the witness to mentally recreate the circumstances surrounding the incident (e.g., think about his/her thoughts or feelings at the time of the incident).|
|Tailor questions to the witness?s narrative. Because the witness is the source of information, the interviewer?s questions should be tailored to the witness?s current thoughts and narrative. For example, if the witness is thinking or talking about the perpetrator?s face, the questions should be about the face and not about other aspects of the incident, such as a license plate.* The interviewer should try to understand what aspect of the incident the witness is thinking about. Based on this inference, the interviewer should ask an open-ended question about that topic and then follow up with nonleading, closed-ended questions related to that topic. A closed-ended question is specific and limits the witness?s response to one or two words (e.g., ?How tall was he??). When asking closed-ended questions, the interviewer must ensure that the questions are nonleading. A leading question suggests an answer to the witness (e.g., ?Was his hair blond??).|
Attempt to minimize the witness?s anxiety. Establish and maintain rapport. Encourage the witness to take an active role in the interview. Request a ?free narrative? description of the incident. Ask the witness to mentally recreate the circumstances of the incident. Ask followup questions to elicit additional information related to the witness?s narration. Review your notes and other materials. Ask the witness, ?Is there anything else I should have asked you?? Close the interview.
Encourage the witness to volunteer information without prompting.
|This allows the witness to maintain an active role in the interview. Unprompted responses tend to be more accurate than those given in response to an interviewer?s questioning. Use a structured format (e.g., fill-in-the-blank form) only after you have collected as much information as possible from open-ended questions.|
Encourage the witness to report all details, even if they seem trivial.
|Sometimes the witness may withhold relevant information because he/she thinks it is unimportant or out of order. All information the witness provides is important.|
Ask open-ended questions (e.g., ?What can you tell me about the car??) and augment with closed-ended, specific questions (e.g., ?What color was the car??).
|Open-ended questions allow the witness to play an active role, thereby generating a greater amount of unsolicited information. Open-ended responses also tend to be more accurate and promote more effective listening on the part of the interviewer. The interviewer also is less likely to lead the witness when framing questions in this manner. Ideally, information should be gathered using primarily open-ended questions. More specific, closed-ended questions should be used only when the witness fails to provide a clear or complete response.|
Avoid leading questions (e.g., ?Was the car red??).
|Leading questions suggest an answer and may distort the witness?s memory.|
Caution the witness not to guess.
|Witnesses, particularly child witnesses, may guess in an attempt to please the interviewer. Instruct the witness to state any uncertainty he/she may feel concerning an answer.|
Ask the witness to mentally recreate the circumstances of the event (e.g., ?Think about your feelings at the time?).
|Recreating the circumstances of the event makes memory more accessible. Instruct the witness to think about his/her thoughts and feelings at the time of the incident.|
Encourage nonverbal communication (e.g., drawings, gestures, objects).
|Some information can be difficult to express verbally. Witnesses, especially children and witnesses responding in other than their first language, may have difficulty with verbal expression. Witnesses? recall can be enhanced by encouraging them to draw diagrams of the crime scene, perpetrator?s scars, and so forth or to use gestures to demonstrate actions.|
Avoid interrupting the witness.
|Interrupting the witness during an answer discourages the witness from playing an active role and disrupts his/her memory. Do not immediately continue questioning when a witness pauses after an answer. During a pause, the witness may be collecting his/her thoughts and could continue to provide information, if provided ample time.|
Encourage the witness to contact investigators when additional information is recalled.
|Witnesses will often remember additional, useful information after the interview. Remind the witness that any information, no matter how trivial it may seem, is important.|
- Instruct the witness to avoid discussing details of the incident with other potential witnesses.
|Witnesses should not hear others? accounts because they may be influenced by that information. The independence of witnesses is important for corroboration of the information they have provided with other witnesses? statements and other evidence in the investigation.|
Encourage the witness to avoid contact with the media or exposure to media accounts concerning the incident.
|Media information may contaminate the witness?s memory. Media requests for a story or offers of compensation may encourage witnesses to fabricate information.|
Thank the witness for his/her cooperation.
|This reinforces the rapport that has been developed and the interviewer?s commitment to the witness, encouraging the witness to continue to cooperate.|
- Document the witness?s statements (e.g., audio or video recording, stenographer?s documentation, witness?s written statement, written summary using witness?s own words).
|Documentation is imperative in the instance that the witness cannot be located later. Use of the witness?s own words ensures that the information is recorded accurately. Additionally, in some jurisdictions, the witness?s statement must be signed to be admissible in court.|
- Review written documentation; ask the witness if there is anything he/she wishes to change, add, or emphasize.
|This is useful for clarifying the information received from the witness to ensure the information has been recorded accurately. This also provides an extra opportunity for witnesses to remember additional information.|
- Consider each individual component of the witness?s statement separately.
|A witness may not have information about all elements of an incident. Thus, some recollections may be correct while others may be incorrect.|
|Show Slide 42 >>|
|NOTE: These procedures are conducted after the interview, without the witness,|
- Review each element of the witness?s statement in the context of the entire statement. Look for inconsistencies within the statement.
|Note any inconsistencies for future reference. Also, note that the inconsistency of one element with another does not imply that the entire statement is inaccurate.|
- Review each element of the statement in the context of evidence known to the investigator from other sources (e.g., other witnesses? statements, physical evidence).
|Note any inconsistencies between the witness?s statement and other information. These inconsistencies can be useful in assessing the accuracy of elements of witness statements as well as in directing the investigation.|
- Reestablish rapport with the witness.
|The investigator should ask the witness about something personal that follows up on his/her previous contact with the witness (e.g., ?Has your arm healed??). Witnesses will continue to provide information to investigators with whom they have a continuous positive relationship.|
Ask the witness if he/she has recalled any additional information.
|This reinforces the idea that the witness is an active part of the investigation. Witnesses generally recall additional information following the initial interview.|
- Follow interviewing and documentation procedures in subsections C, Conducting the Interview, and D, Recording Witness Recollections.
|Go back and review this material. (See pages 15?22. Refer students to Guide pages 22?24.)|
Provide no information from other sources.
|Witnesses may ask the investigator about information that has developed since the initial interview. Providing the witness with specific information obtained from other witnesses or from physical evidence may influence the witness?s perception of the incident.|
|Should other information arise following the initial interview that differs from, contradicts, or corroborates information the witness provided, this information can be clarified with the witness at this time. However, the investigator can present that information to the witness in a nonleading manner. The investigator can provide the witness with neutral information, such as asking if any vehicle was present at the time of the incident, NOT ?Are you sure there was not a blue Ford at the scene??|
What is one question asked of a witness?
Ask open-ended questions. Open-ended questions more likely result in learning what the witness knows. ‘ Who was there? ‘ ‘What was said?’ ‘Why did you do that?’ Open-ended questions force the witness to respond. They help in learning about the subject based on how the witness describes himself.
What to expect in a preliminary hearing UK?
You might have a preliminary hearing before your main employment tribunal hearing if:
- your case is complicated the issues to be decided are not completely clear your case involves discrimination
It’ll usually be heard by a judge alone. You might have more than one preliminary hearing. The tribunal will have sent you a letter if your case will have a preliminary hearing. The letter should have explained what the hearing is about. It might be about:
- managing the case – including setting a date for the main hearing dealing with an issue which needs to be decided before the main hearing can take place – including clarifying your claim
The letter will also tell you if there’s anything you need to do to prepare for the hearing. At a preliminary hearing the judge could:
- decide if any of your claims or your employer’s responses shouldn’t be discussed at the main hearing – this is called being ‘struck out’ decide if you need to pay a deposit to continue with your case decide if you need an expert’s report and who’ll pay for it – for example if you’re claiming disability discrimination and your employer says you’re not disabled see if you can settle your case before it goes to a main hearing agree to judicial mediation or a judicial assessment, if you and your employer want it
What are the preliminary Offences?
Frequently Asked Questions about Preliminary Offences – Yes, in the UK, you can go to jail for preliminary offences, which include conspiracy, attempt, and incitement. These are criminal acts that precede the commission of a more serious crime. Sentencing depends on the specific offence and its gravity, but may result in imprisonment depending on the circumstances and the end crime involved.
The sentence for preliminary offences in the UK varies depending on the specific offence, its severity, and any aggravating factors. Sentences can range from fines, community orders, or imprisonment. The maximum sentence for conspiracy, for example, is generally the same as the maximum sentence for the substantive offence being conspired.
Each case is evaluated individually, and the court will determine the appropriate sentence based on the facts and relevant sentencing guidelines. Preliminary offences are actions in the early stages of criminal activity that may not involve the completion of the intended crime.
- In the UK, these offences typically include conspiracy, incitement, and attempt.
- They are legally distinct from the main offence and are prosecuted to prevent or deter individuals from progressing further in their criminal plans.
- Each of these preliminary offences has its specific requirements and legal elements that must be proven in court.
An example of a preliminary offence in the UK is “conspiracy to commit a crime,” whereby two or more individuals agree to carry out a criminal act, even if the actual crime is never executed. The agreement itself and any actions taken towards the completion of that crime can result in criminal charges for all conspirators.
- Preliminary offences are acts that prepare, facilitate, or encourage the commission of a crime without directly committing the crime itself.
- These include conspiracy, aiding and abetting, and attempt.
- On the other hand, offences refer to the actual criminal acts committed, such as theft, assault, or murder.
Thus, the primary difference lies in preliminarily offences being steps or actions leading up to a crime, while offences are the actual crimes committed.
Can charges be dropped at a preliminary hearing UK?
The answer to the question ‘can the CPS drop a case before a trial’ is yes. A case can be dismissed before trial in the UK in two different ways – formal acquittal and discontinuance.
Do you need a lawyer for a preliminary hearing in PA?
Having an experienced criminal defense attorney will be able to help both get the best possible outcome at a preliminary hearing, and as importantly, they’ll be able to set the stage if the case were to go forward, or if charges were to be held for court by their actions and, say, the testimony at the preliminary
What is the prima facie case?
A prima facie case is a cause of action or defense that is sufficiently established by a party’s evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.
What happens if you miss a preliminary hearing in PA?
Understanding the Consequences of “Failure to Appear” – Failure to appear is addressed in Rule 1910.13-1 of the Pennsylvania Code: “If a party fails to appear at a conference and/or hearing as directed by order of the court, the court may issue a bench warrant for the arrest of the party,
If the court issues a bench warrant for your arrest, the police could pick you up, and you could be held in custody for up to 72 hours while you await a hearing. How likely is it that you will actually get arrested if you have a bench warrant? In most cases, the police will not knock on your door or try to locate you.
However, if you get pulled over and the officer sees a bench warrant pending, the officer could arrest you and take you into custody. In Pennsylvania, failure to appear for a scheduled court date can also lead to:
Forfeiture of bond Fines Driver’s license suspension
What are the 3 forms of evidence?
Evidence: Definition and Types Demonstrative evidence; Documentary evidence; and. Testimonial evidence.
What are the key factors the court will probably consider?
CLM Magazine When a construction-related legal dispute cannot be resolved by the parties themselves or with the help of a mediator, a party may feel it has no choice but to take the case to trial—either to force an adversary to get serious about settlement or because the party believes only a judge or jury could break the deadlock.
- Most of us already know that “Trial Evaluation 101” includes considering the strength of the case, potential damages, the costs of litigation, time and resources, and the risks and benefits of settlement.
- But, in this article, we—a plaintiff attorney, defense attorney, insurance executive, and construction expert witness with more than 100 years of experience combined, including many trials each—offer four additional factors we believe have an outsized impact on a party’s chances of success at trial.
- Factor 1: What Is the Fabric of Your Team?
Figure 1 below is a graphical representation of what anyone involved in construction-related litigation knows to be true—litigation brings with it a large cast of characters, each of whom has its own loyalties, strengths, and weaknesses. Figure 1 depicts a small construction litigation matter with only one plaintiff, one direct defendant, and three cross-defendant trade contractors, yet requires a minimum of 19 distinct parties. A core aspect of construction litigation trial teams, especially on the defense side, is the tripartite relationship between the insurer, the insured, and the attorney hired by the insurer to defend the insured in the lawsuit. The complexity of this relationship is well beyond the scope of this article, but depending on the law of the state that governs the lawsuit, an attorney might have ethical obligations to the insurer that come close to, or are equal to, the obligations they have to the insured client.
Nowing the law, understanding the quirks of the pre-trial and trial process, and navigating the complexities of a tripartite relationship are prerequisites for members of a successful trial team. Naturally, the more experienced an attorney, expert, or insurer’s representative is with going through trials or resolving disputes during trial, the more likely they are to help a party successfully do either.
Knowledge and understanding are only two pieces of the puzzle. To be successful in construction litigation trials, where the size of the cast of characters rivals that of a Hollywood blockbuster, team members must be able to handle the stress that comes with trial.
Whether it is an attorney going on little sleep, an expert who was beaten up during cross-examination, or an insurer’s counsel who is getting fed up with an adversary’s unreasonableness, chances are good that the members of a team will not be operating under optimal conditions. When that is the case, what is the fabric of the team? Will members of the team maintain their professionalism? Will they stay strong, respectful, and even-keeled, or will they let their emotions get the best of them, which will prevent them from seeing the situation objectively and using clear, unbiased judgment? Hopefully, you have sufficient evidence on which to base your predictions about how your team will fare.
Years of service do not equal expertise, but the best predictor of future performance is past performance. If you do not have firsthand knowledge of your team members’ past performance, speak with people who have worked with your team members to inform your predictions.
- Factor 2: What Happens When You Crunch the Numbers?
- Your team could be peerless and unflappable under pressure, but if the math of going to trial does not work out, that will not matter.
- Generally—with some exceptions we will address later—plaintiffs and their attorneys will want to take a case to trial when their math looks like this:
- The reasonable and objective value of a claim *minus* What it will cost to go to trial, such as attorneys’ fees, expert fees, and other fees and cost *minus* A discount for uncertainty of how a judge or jury might rule given the facts of the case and any unresolved legal questions *is greater than* The dollar amount the other side has offered during settlement negotiations,
- Defendants and their counsel will crunch the numbers differently and will likely take a case to trial if:
- The reasonable and objective value of a claim *plus* What it will cost to go to trial *plus* A premium for uncertainty of how a judge or jury might rule given the facts of the case and any unresolved legal questions *is less than* The dollar amount the other side will settle for,
Sometimes, defendants and their counsel might want to tweak their calculations to include a reward of attorneys’ fees and costs, which would lessen their theoretical costs and thus drive down the number on the other side of the equation.The key to these equations is a set of reasonable assumptions about the value of a claim and the costs and expenses incurred on the road to trial.
- It would behoove all players to assume worst-case scenarios for valuations and costs so clients and insurance companies are not basing their decisions and guidance on unrealistic expectations.
- Factor 3: Are There Subjective Considerations That Override Objective Math? Many times, crunching the numbers won’t give the full picture or be the deciding factor in whether to take a case to trial.
Instead, the decades of collective knowledge, wisdom, and experience held by the cast of characters depicted in the organizational chart in Figure 1 might guide a litigant toward or away from trial.
- In other words, in the professional judgment of a litigant’s counsel, their experts, their insurer’s counsel—and perhaps with defendants, their co-defendants’ counsel, experts, and insurers’ counsel—is there a reason to go or not to go to trial that overrides what the math suggests?
- For example, is the trial an opportunity to set a precedent or to send a message to the industry that certain conduct will not be tolerated?
- On the other hand, would a settlement avoid a possibly problematic court ruling that could greatly impact industry players, like insurers?
Does one lawyer have the reputation for being a talented litigator but a horrific trial lawyer, which would motivate the other side to call this lawyer’s bluff, causing them to persuade their client to settle? Or, is the lawyer a well-known lawyer with decades of experience but who does not have extensive—or any—trial experience, making them similarly vulnerable to another party calling their bluff? Is one lawyer known to be a clumsy litigator but a skillful presenter who will have the jury eating out of their hands after their opening statement, which might compel the other side to settle before trial? Even in the absence of these particular factors, is there something about this case, this judge, or this jury pool that might force a party’s hand regarding going to trial? For example, have juries in the jurisdiction recently been willing to hand up generous verdicts against corporations and insurance companies? Or, have juries refused to allow trial lawyers to rile them up and play on their anger with the hopes they’ll return a nuclear verdict? Additionally, could the case be one where the “winner” could actually lose in the end? For example, perhaps a jury finds a party to have breached a contract, but it zeroes in on a fact that causes it to award the non-breaching party a fraction of the low-end damages the party thought it could secure when it ran the math about taking the case to trial.
Or, could a “winning” party face a situation where not only is it awarded a lower dollar amount of damages than forecasted, but also a judge refuses to award that party fees or costs even where it would be common for a judge to do so? Another consideration is the availability of coverage under the applicable insurance policy with respect to any trial outcome, which the insurer, the insured, and the insured’s counsel should carefully consider, in addition to the costs of trial, when weighing the cost of settlement opportunities.
Transparent communication between the insurer and its insured regarding coverage limitations is a must if the insured and its counsel are to properly consider this factor when deciding whether to go to trial. Factor 4: Have You Been Managing Expectations From the Start? In typical construction litigation, there are two sets of expectations that attorneys and experts must manage in the lead up to trial: the client’s and the insurer’s.
- For clients, their expectations about the probability of success at trial and the cost of going to trial will dictate their willingness to do so.
- Some attorneys and experts are happy to give their clients ballpark estimates of both, but, in our view, the better practice is to break down, in plain English and in simple numbers, why certain trial outcomes might occur and what exactly the costs of going to trial might look like.
Neither analysis needs to be long, but each should be clear. For example, attorneys should explain why, specifically, a judge might rule against a client on a question of law, or why a jury might not find the client’s experts as credible as the other side’s experts.
- Budgets should include both conceivable costs the client will incur and a realistic (if not a bit inflated) estimate of the fees and costs the client might incur if they are on the hook for the other side’s fees and costs.
- For insurers, they will probably already know why certain trial outcomes might occur, and will probably provide to a party’s attorney their opinion as to the likelihood of those outcomes hap-pening.
But that does not mean they wouldn’t appreciate independent analysis of those outcomes. Additionally, while insurers are well aware of, and honor, their ethical obligation to defend their insured, they are not big fans of surprises, especially when it comes to trial budgets.
- They are going to want to know early and often what the estimated cost is to take a case to trial and why the team wants to incur certain expenses.
- But managing expectations is not just about providing thoughtful litigation analyses and realistic budgets early on.
- It is imperative the trial team continually update clients and insurers on the current state of affairs regarding the probability of success at trial and the trial budget.
Both frequently change, with scope creep and cost creep coming into play as trial nears. The clearer the line of sight clients and insurers have into the probability of success and the cost to go to trial, the more receptive they’ll be to guidance regarding whether to proceed down that route.
- Construction litigation cases are almost always messy.
- Deciding to take a construction litigation case to trial requires parties, their attorneys, experts, and their insurers to first consider the ob-vious, tried-and-true evaluation fundamentals, and then the more complex and nuanced four “professional judgment” factors we discussed above.
: CLM Magazine
Which is the most common plea at arraignment?
What’s the difference between pleading no contest and guilty? – Pleading not guilty is perhaps the most common plea entered in criminal court. Even if a person believed they are guilty of the offense, pleading not guilty is usually the safest bet. A no contest plead means you neither agree or disagree with the charges against you, and you are just pleading to close the case.
What is the most common pretrial identification procedure?
Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press. doi: 10.17226/18891. × 2 Eyewitness Identification Procedures Police in the United States investigate millions of crimes each year.1 Only a small percentage of the police-investigated crimes involve the use of police-arranged identification procedures.
Identification procedures are unnecessary when, for example, the perpetrator is caught during the commission of the criminal act, as in the crime of driving while intoxicated, or when the victim knows the perpetrator, as in crimes of domestic violence.2 Police use identification procedures for numerous reasons.
In some circumstances, the police identify a suspect during an investigation and use the identification procedure to test a witness’ ability to identify the suspect as the perpetrator. In other instances, the identification procedure is used as an investigative tool to further an investigation.
A positive identification might form probable cause for a search warrant or the apprehension and subsequent questioning of a suspect, or both. Most significant for the purposes of this report are the circumstances in which a witness positively identifies the police suspect as the perpetrator, and the identification serves as compelling evidence in the prosecution of a case.
Data on the number of eyewitness identification procedures are not systematically or uniformly collected. While the exact number of eyewitness _ 1 Federal Bureau of Investigation, “Crime in the United States 2012: Persons Arrested,” available at: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/persons-arrested/persons-arrested,2 Throughout Chapter 2, the terms law enforcement and police are used interchangeably and refer to all law enforcement agencies at the local, state, and federal levels.
Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press. doi: 10.17226/18891. × identification procedures related to crimes involving strangers is unknown, mistaken identifications have disastrous effects for those wrongly accused of crimes and for society should a guilty person go free.
Mistaken identifications may also erode public confidence in the criminal justice system as a whole.3 Recently, some police departments and prosecutors have implemented stringent eyewitness identification procedures in an effort to reduce erroneous convictions.4 Police-arranged eyewitness identification procedures vary greatly depending on the nature of the case.
In some cases, a police-arranged identification is conducted at the very early stages of an investigation. For instance, consider the circumstance in which police respond to a bank robbery in progress. The perpetrator is described as a white male, approximately 6 feet, 2 inches in height wearing an orange shirt.
As the police arrive at the crime scene, an officer observes and apprehends a man fleeing the bank wearing an orange shirt and exhibiting similar physical characteristics. In this situation, a police-arranged identification procedure may be conducted on the scene and prior to any significant investigation.
At the other extreme are, for example, lengthy homicide or rape cases that include extensive investigations, forensic testing, and eyewitness interviews conducted over a protracted period of time. Such efforts may culminate in the identification of a suspect and the suspect’s inclusion in a photo array identification procedure.
In such a circumstance, an eyewitness may not be asked to identify a perpetrator until months after the commission of the crime—and often after repeated probes of her or his memory by, for example, police, family members, and others. Identification procedures may be used in different ways for different purposes.
They are not always used to identify an unknown perpetrator of a crime. The police may, for example, use photo arrays and confirmatory single photographs to clarify the legal identity (birth name/government name) of an individual who is well known to a witness, but only by a street name. In such examples, a witness may know (and may have known) the perpetrator for years but may only be able to identify him by a common _ 3 See, generally, The International Association of Chiefs of Police, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” August 2013.4 See The Innocence Project, Eyewitness Identification, available at: http://www.innocenceproject.org/fix/Eyewitness-Identification.php ; U.S.
Department of Justice, Office of Justice Programs, Eyewitness Evidence: A Guide for Law Enforcement (Washington, DC, 1999); Metropolitan Police—District of Columbia, General Order—Procedures for Obtaining Pretrial Eyewitness Identification, April 18, 2013; New York State District Attorneys Association Best Practice Committee, New York State Photo Identification Guidelines, October 2010; Rhode Island Police Chiefs Association, Lineup and Showup Procedures (Eyewitness Identification), November 2011; and Innocence Project of Texas, Eyewitness Identification Reform, available at: http://www.ipoftexas.org/eyewitness-id,
Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press. doi: 10.17226/18891. × street name, such as “Prince.” The police typically will use an identification procedure to identify the “Prince” to which the witness is referring before they make an arrest or take other investigative measures such as the execution of a search warrant.
This chapter reviews the eyewitness identification procedures commonly used by the police and concludes with a brief discussion of situations in which citizens engage in identifying perpetrators without police assistance. PHOTOGRAPHIC ARRAY The photo array is the most common police-arranged identification procedure used in the United States.5 A photo array consists of six to nine photographs displayed to a witness.
- An officer might create an array by selecting photographs of persons deemed to resemble the perpetrator.6 Officers might then display the photographs one at a time to the witness and ask whether she or he recognizes each one.
- This method is known as a sequential procedure.
- Officers might also create photo arrays by cutting six square holes in a folder and taping the photographs to the back of the folder so that the faces of the fillers (non-suspects) and suspect are displayed together.
When such photographs are presented simultaneously as a two by three matrix, this type of array is referred to as a “six pack.” When, as in this instance, photographs are displayed together, this is referred to as a simultaneous procedure. In 1999, Attorney General Janet Reno released the U.S.
Department of Justice, Eyewitness Evidence: A Guide for Law Enforcement, 7 one of the earliest efforts to establish standardized procedures for police-arranged eyewitness identification. The guide set forth rigorous criteria and basic procedures to promote accuracy in eyewitness evidence.8 However, after the guide was released, most police departments in the United States did not adopt these procedures.
Today, many police departments use computer systems to access image databases and assemble photo arrays. Officers enter physical characteristics (e.g., race, gender, hair color) specific to the suspect into a computer, and the system retrieves filler photographs with the desired attributes.
If an officer determines that a photograph in the array is suggestive or otherwise inappropriate, she or he can reject one or more fillers and instruct the system _ 5 Police Executive Research Forum, “A National Survey of Eyewitness Identification Procedures in Law Enforcement Agencies,” March 2013, p.48.6 Historically, the photographs were mug shots in the possession of a police department.7 U.S.
Department of Justice, Office of Justice Programs, Eyewitness Evidence: A Guide for Law Enforcement (Washington, DC, 1999).8 Ibid, pp.11–38. Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification,
Washington, DC: The National Academies Press. doi: 10.17226/18891. × to provide alternate photographs. Departments may conduct the procedure without revealing to the witness how many photographs she or he will view. In recent decades, many police agencies and prosecutors have adopted sequential presentation of photographs, based on the belief that this approach improves the performance of an eyewitness.
Currently, however, there is no consensus among law enforcement professionals as to whether the sequential presentation procedure is superior to the simultaneous procedure (see Chapter 5 ). The District of Columbia Metropolitan Police Department, for example, does not endorse either simultaneous or sequential procedures in its Procedures for Obtaining Pretrial Eyewitness Identification,9 The District Attorneys Association of the State of New York in 2010 adopted recommended policies for New York State and endorsed the simultaneous method.10 On the other hand, in North Carolina, legislation was passed that requires that lineup photographs be presented sequentially, 11 and in Massachusetts, the Supreme Judicial Court Study Group on Eyewitness Identification recommended sequential procedures as best practice for Massachusetts Police Departments.12 The committee was presented with information regarding improvement efforts from states including New Jersey, Oregon, Rhode Island, Texas, New York, and Massachusetts.
However, the committee is unable to determine the percentage of police departments that have adopted policies for eyewitness identification procedures and instituted training in these procedures.13 Some police departments require that photo arrays be presented to the witness during a procedure that is either “double blind” or “blinded.” 14 (See Box 2-1 for a discussion of blinding as used in scientific practice and blinding as used in eyewitness identification procedures.) Blinding is used to prevent conscious and unconscious cues from being given to the witness.
In a double-blind procedure, an individual who does not know the identity of the suspect or the suspect’s position in the photo array shows a photo array to the eyewitness. In cases where such a double-blind procedure is _ 9 See Metropolitan Police—District of Columbia, General Order—Procedures for Obtaining Pretrial Eyewitness Identification, April 18, 2013.10 See New York State District Attorneys Association Best Practice Committee, New York State Photo Identification Guidelines, October 2010.11 N.C.
Gen. Stat. § 15A-284.52 (West 2007).12 See Massachusetts Supreme Judicial Court Study Group on Eyewitness Identification, Report and Recommendations to the Justices (2013).13 The Police Executive Research Forum’s 2013 survey of eyewitness identification procedures in law enforcement agencies, notes that most agencies that completed the survey have no written policy for eyewitness identification procedures and that more agencies provide training to their employees than have written policies.
See pp.79–80.14 Police Executive Research Forum, p.64. Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press.
- Doi: 10.17226/18891.
- × not feasible, a “blinded” procedure will approximate the condition of double-blinding.
- For example, the photo array may be administered by an individual who knows who the suspect is, but is unable to tell when the witness is looking at the suspect’s photo and so is unable to provide even subconscious feedback to the witness.
In one common “blinded” procedure, the officer places each photo in a separate envelope or folder and then shuffles the envelopes/folders so that only the witness sees the images therein. Additional recommendations to minimize the possibility of biasing feedback to the witness include requiring that the officer read instructions to the witness from a pre-printed form.15 If the witness identifies someone from the photo array, some departments ask the witness for a confidence statement.
Based upon information presented to the committee, it appears that police departments do not always document identification procedures in instances when an identification is not made. Further, if a witness does make an identification, practices differ as to how such information is documented and preserved.
Some agencies, for example, require officers to document this information in a written report. Others make audio or video recordings of the identification procedure. LIVE LINEUP A live lineup is a police-arranged identification procedure in which the physical suspect and fillers stand or sit in front of the witness (either individually, i.e., sequentially or en masse, i.e., simultaneously).
- The police generally use at least five fillers.
- Fillers are selected for their physical similarities to the suspect (gender, race, hair length and color, facial hair, height, skin tone, and other distinguishing features).
- The fillers are presumed to be unknown to the witness.
- Traditionally, the suspect and fillers are seated or stood in a row, and the witness views the lineup from behind a two-way mirror.
Police use both simultaneous and sequential procedures for live lineups. Live lineups are used in some jurisdictions, but they are not the predominant method used by law enforcement.16 The use of these police identification procedures is limited for a variety of reasons.
First, in certain circumstances, legal counsel may be required at a lineup, thereby making it less attractive to police and prosecutors. Second, in smaller jurisdictions, it may be difficult to obtain suitable fillers (e.g., those with appropriate _ 15 As discussed in Chapter 3, the courts have been sensitive to the potential for misidentification resulting from “suggestive” identification procedures and have set standards for admissibility of evidence.16 Police Executive Research Forum, p.48.
Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press. doi: 10.17226/18891. × BOX 2-1 Blinding Empirical evidence a has shown that the beliefs, desires, and expectations of researchers can influence, often subconsciously, how they observe and interpret the phenomena they study and thus the outcomes of experiments.
- This evidence has influenced how scientists carry out their experiments, resulting in the use of blind or double-blind procedures to control for this form of bias.
- Blind assessment b has been used since the late 18th century; an early medical trial in 1835 used double-blind assessment, and psychologists started using blinding in the 20th century.
c By the 1950s, blind assessment in randomized controlled trials was considered standard procedure in both psychological and medical research. Currently, virtually all of science uses some form of blinding. In single-blind experiments, participants do not know which treatment they are receiving; this form of blinding is used widely across scientific fields.
- In experiments involving humans, as in medical or psychological research, double-blind procedures are used to guard against “expectancy effects” for both participants and researchers.
- In a classic double-blind clinical trial, some patients receive active medication and others are given an alternative (either a “standard treatment” or a similar-looking placebo without active ingredients), but neither researchers nor participants know who is receiving which treatment.
In an eyewitness identification setting, double-blinding can be used to prevent a lineup administrator from either intentionally or unintentionally influencing a witness. In these cases, neither the eyewitness nor the administrator knows which persons in a photo array or live lineup are the suspected culprits and which are the fillers.
- D, e In eyewitness identification procedures, as in science, the purpose of double-blinding is to prevent the conscious or subconscious expectations of the administrator from influencing the witness or research outcomes.
- In a double-blind photo array, the officer or detective conducting the investigation reads a set of standard instructions to the witness.
The instructions may include an advisory that the officer about to show the photos does not know whether any of the photos are of the person who committed the crime. The officer then leaves the room and a second officer—perhaps a patrol officer—displays the physical similarities to the suspect).
Third, conducting a lineup requires a significant amount of time and labor, 17 thereby making photo arrays a more attractive alternative that may be undertaken promptly and with less demand on department resources. _ 17 Live lineup construction may be further constrained by the inability to hold a suspect in custody without probable cause.
See Chapter 3. Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification, Washington, DC: The National Academies Press. doi: 10.17226/18891. × photos. It is the duty of this second officer (the “blind administrator”) to show the photos and, if an identification is made, document what the witness said and ask the witness how certain she or he is of their identification.
Once all photos have been shown, the officer reports the result of the procedure to the investigating officer (preferably out of earshot from the witness). As an alternative to a double-blind array, some departments use “blinded” procedures. A blinded procedure prevents an officer from knowing when the witness is viewing a photo of the suspect, but can be conducted by the investigating officer.
A common approach is the so-called “folder shuffle.” With a six-photo array, an officer uses eight manila folders. A photograph of a filler is placed in the top folder, and a photograph of the suspect and four additional fillers are placed in the next five folders.
- The six folders are then shuffled so that the officer does not know which folder contains the image of the suspect.
- Two folders with blank paper are placed on the bottom of the stack so that the witness is led to believe that there are more than six images in the array (this is referred to as back-loading, and it prevents the witness from knowing when she or he is about to view the last photograph).
After reading instructions to the witness, the administering officer sits to the witness’ left and hands him or her one folder at a time and instructs him/her to open each folder and look at the enclosed photo. The cover of the folder blocks the officer from viewing the photo that the witness is viewing.
When an identification occurs, the officer notes the witness’ words and reaction and asks about the witness’ confidence in his or her identification. _ a R. Rosenthal, Experimenter Effects in Behavioral Research (New York: John Wiley, 1976). b M. Stolberg, “Inventing the Randomized Double-Blind Trial: The Nürnberg Salt Test of 1835,” James Lind Library Bulletin (2006), available at: http://www.jameslindlibrary.org/illustrating/articles/inventing-the-randomized-double-blind-trial-the-nurnberg-salt,
c T.J. Kaptchuk, “Intentional ignorance: A History of Blind Assessment and Placebo Controls in Medicine,\” Bulletin of the History of Medicine 72(3): 389–433 (1998). d P. Kilmartin, Presentation to the committee, February 6, 2014. e K. Hamann, Presentation to the committee, December 2, 2013.
SHOWUP A showup is a police-arranged identification procedure in which the police show one person to a witness and ask if she or he recognizes that person. This procedure typically is used when the police locate a suspect shortly after the commission of a crime and within close proximity to the scene.
Case law limits the time and distance from a crime during which such a procedure will pass legal standards. In response to such case law, police typically restrict showups to a two-hour time period after the commis- Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014.
- Identifying the Culprit: Assessing Eyewitness Identification,
- Washington, DC: The National Academies Press.
- Doi: 10.17226/18891.
- × sion of a crime.
- Ideally, officials take the witness to the location where the suspect has been detained and do not display the suspect in a suggestive manner (e.g., not in a police car, not handcuffed, without drawn weapons).
However, as chases, fights, or disarmaments frequently precede showups, the apprehension of a suspect can raise safety issues that make it difficult to adhere to recommended procedures. Further, the nature of a showup does not lend itself to the use of a blinded procedure.
- A showup is designed to promptly clear innocent suspects, thereby sparing them from a prolonged period of detention as the investigation continues.
- Delaying the showup to locate an uninvolved officer may defeat that purpose.
- While some law enforcement agencies use a standard procedure with written instructions when conducting a showup, there is no indication that such procedures are used uniformly.
Courts consider showups highly suggestive, and prosecutors urge the police to exercise caution when conducting them. CONFIRMATORY PHOTOGRAPH Police will, on occasion, display a single photograph to a witness in an effort to confirm the identity of a perpetrator.
Police typically limit this method to situations in which the perpetrator is previously known to or acquainted with the witness. FIELD VIEW Police also use field views in attempts to identify perpetrators. The method, which involves inviting a witness to view many people in a context where the perpetrator is thought likely to appear, is used when the police do not have a suspect but believe that the offender frequents a particular location.
For example, police investigating a purse snatching may obtain information that the perpetrator frequents a particular recreation site during the lunch hour. A plainclothes officer or investigator might take the eyewitness to the site and walk around with him or her during the lunch hour without directing his or her attention to any specific individual.
- OTHER PROCEDURES—MUG BOOKS AND YEARBOOKS At times, police use other means to identify perpetrators.
- In the past, police sometimes had witnesses review mug shot books.
- Mug books have since been largely replaced by digitized images displayed on computer screens.
- Nonetheless, there are situations in which the police will have a witness review a large collection of photographs in an effort to identify a perpetrator.
Witnesses who identify a perpetrator as being a student at a specific school might be asked to review a yearbook for that school in an Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014. Identifying the Culprit: Assessing Eyewitness Identification,
- Washington, DC: The National Academies Press.
- Doi: 10.17226/18891.
- × effort to identify the perpetrator.
- When using this method, police typically attempt to mask the names of the students.
- Similarly, if the offender is believed to be an individual from a certain profession, then the police might have the witness review photographs from the suspect’s professional society.
Social media sites also serve as the catalyst for police-arranged identification procedures. If a witness knows that the perpetrator is a “friend” of Jane Doe through social media, then the police might have the witness review all friends of Jane Doe to see if she or he recognizes the individual.
All of these additional procedures (i.e., confirmatory photo, field view, mug books, yearbooks) have the potential to introduce biases of the sort that blind lineup procedures are designed to avoid. NON-POLICE IDENTIFICATION PROCEDURES In some cases, the victims or witnesses, or both, identify suspects without involving the police.
A private citizen, organization, or corporation may conduct an investigation before, during, or even after reporting a crime to the police. The identification of suspects by entities other than law enforcement has become increasingly common as more businesses and private citizens use security cameras to identify criminal actors.
- High-resolution cameras coupled with high-capacity hard drives allow for real-time streaming of video with superior clarity.
- Such systems are relatively inexpensive and within financial reach of many home and business owners.
- Additionally, the proliferation of smart phones has put the ability to create a spontaneous, high-quality video record of an event into the hands of more and more people.
The rise of social media has resulted in the rise of private investigations and identifications using this resource. In one recent case, a stabbing victim drew a picture of her assailant and showed it to her husband.18 Upon viewing the picture, the husband believed that the assailant looked familiar and might be his ex-girlfriend.
- He obtained several photographs of the ex-girlfriend from her personal website and showed them to the victim who, after looking at those and other online images, identified the suspect at a lineup and at trial.
- CONCLUSION Many local, state, and federal law enforcement agencies have adopted policies and practices to address the issue of misidentification.
However, efforts are not uniform or systemic.19 Many agencies are unfamiliar with _ 18 New Jersey v. Chen, 27 A.3d 930 (N.J.2011).19 See Massachusetts Supreme Judicial Court Study Group on Eyewitness Evidence, p.2. Suggested Citation: “2 Eyewitness Identification Procedures.” National Research Council.2014.
- Identifying the Culprit: Assessing Eyewitness Identification,
- Washington, DC: The National Academies Press.
- Doi: 10.17226/18891.
- × the science that has emerged during the past few decades of research on eyewitness identifications.
- Questions remain about the optimal design of photo array procedures, including the size of the array, the contents of the photographs, and their relationship to the context of the crime scene.
Similar questions apply to the design of live lineups.20 Eyewitness identification is further complicated by the increasing number of situations in which victims and witnesses seek to identify the perpetrator of a crime without the aid of law enforcement.
What is the best method of questioning witnesses?
Direct Examination – You will need to question the witnesses you call. This type of questioning is called direct examination. For a direct examination you will need to ask open questions (questions that allow for explanations.) Open questions usually begin with words like who, what, why, where, how, tell me about, or describe.
- The opposite of an open question is a leading question.
- Leading questions as the name indicates leads the answerer to a particular answer.
- They are usually answered with a yes or no.
- Leading questions allow you to control what the witness talks about and often helps you get the witness to give a specific answer.
This is why you are not allowed to ask your own witnesses leading questions. Here are some examples to show you the difference: Open Question: – Describe the current parenting arrangements? Leading Question – Nancy lives with you Monday to Friday correct? Open Question: What happened Sunday February the 12 th last year during Nancy’s drop off? Leading Question: You were an hour and a half late dropping Nancy off February 12 th 2015 weren’t you? Dos and Don’ts of direct examination
|The Dos||The Don’ts|
Once you’ve finished examining your witness the other party will be allowed to cross examine them.
How do you give a good witness talk?
Witness talks can be general about your whole life, or can be tailored to one specific encounter. Either way, the talk should be geared towards that particular audience and be relevant to them and the topic for the program. Be conscientious of the time you’ve been allotted.
What makes a great witness?
Marquette County Prosecutor’s Office 234 West Baraga Avenue Marquette, Michigan 49855 (906) 225-8310 Since most witnesses are unfamiliar with court surroundings and have certain fears or misconceptions about testifying, here is some information that might help you.
Keep in mind that the purpose of this information is to help you testify more clearly and accurately, and be more easily understood by the judge and jury. As a witness, you have an important job to do for the American system of justice. For a jury or a judge to make a wise decision, all of the evidence must be presented in a truthful manner.
You already know that you take an oath in court to tell nothing but the truth. WE WANT YOU TO TELL THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH. The manner in which you testify, however, will affect the judge and jury’s perception of your truthfulness.
If you are halting, stumbling, hesitant, arrogant, or inaccurate, the judge and the jury may doubt that you are telling all the facts in a truthful way. The witness who is confident and straightforward will make the court and the jury have more faith in what he or she is saying.1. You are sworn to tell the truth.
Tell it. Every material truth should be readily admitted, even if not to the advantage of the prosecution. Honesty is the best policy. Do not stop to figure out whether the answer will help or hurt your side; just answer the questions to the best of your memory.
Do not exaggerate. If you tell the truth, and tell it accurately, nobody can cross you up.2. A neat appearance and proper dress in court are important.3. Avoid distracting mannerisms. Don’t chew gum, and keep your hands away from your mouth. You can’t speak distinctly while chewing gum or with your hand over your mouth.4.
Don’t try to memorize what you are going to say. Prior to trial, however, do try to go over in your own mind those matters upon which you will testify. If you have testified in the same case before and a transcript is available, read over your earlier testimony.
- If you wrote or gave a statement to police, read that over as well.5.
- Be serious in the courtroom.
- Avoid laughing and talking about the case in the presence of the jury or anywhere in the courthouse where you may be observed.6.
- Speak clearly and loudly enough so that the farthest juror can hear you easily.7.
Listen carefully to the questions asked of you. Take your time; give the question as much thought as you require to understand it, formulate your answer, and then give the answer. No matter how nice the attorney may seem on cross-examination, he or she may be trying to discredit you.
- Be sure to understand the question, have it repeated if necessary, then give a thoughtful, considered answer.8.
- Don’t be afraid to look the jury in the eye and tell the story.
- Jurors are naturally sympathetic to the witness and want to hear what he or she has to say.
- If you remember that you are just talking to some neighbors on the jury, you will get along just fine.9.
Always be courteous, even if the lawyer questioning you may appear discourteous. Don’t be a cocky witness. This will lose you the respect of the judge and the jury. Any lawyer who can make a witness mad will probably cause the witness to exaggerate, appear unobjective, and emotionally unstable.
Be sure to answer “Yes Sir/Ma’am” and “No Sir/Ma’am” and to address the judge as “Your Honor. ” 10. Above all this is most important, do not lose your temper. Remember that some attorneys on cross-examination will try to wear you out so you will lose your temper and say things that are not correct or that will hurt you or your testimony.
Keep your “cool.” 11. Never argue with the defense attorney.12. Try not to seem nervous. Give a positive answer when you can. Avoid mannerisms which will make the judge or jury think that you are scared, or not telling the truth or all that you know.13. Do not nod your head for a “yes” or “no” answer.
Speak so the court reporter can hear the answer.14. Before you testify, try to picture the scene, the objects there, the distances and just what happened so you can recall more accurately when you are asked. If the question is about distances or time and if your answer is only an estimate, be sure to say it is only an estimate.15.
Answer only the question you are asked. Do not volunteer information that is not asked. Don’t guess, and if you don’t know, say you don’t know. If you don’t remember, say you don’t remember.16. If your answer was not correctly stated, correct it immediately.
- If your answer was not clear, clarify it immediately.17.
- Explain your answer, if necessary.
- Give the answer in your own words, and if a question can’t be truthfully answered with a “yes” or “no”, you have a right to explain the answer.18.
- The judge and the jury are interested only in the facts.
- Therefore, don’t give your conclusions and opinions unless specifically asked.19.
Unless certain, don’t say, “That’s all of the conversations’ or “Nothing else happened.” Instead say, “That’s all I recall,” or “That’s all I remember happening.” It may be that after more thought or another question, you will remember something important.20.
If you don’t want to answer a question, don’t ask the judge whether you must answer it. If it is an improper question, the prosecutor trying the case will take it up with the judge. Don’t ask the judge for advice.21. When being questioned by defense counsel, don’t look at the prosecutor or at the judge for help in answering a question.
If the question is improper, the prosecutor will object. If a question is asked and there is no objection, answer it. Never substitute your ideas of what you believe the rules or evidence are.22. Stop instantly when the judge interrupts you, or when an attorney objects to a question.23.
- When coming from the witness stand after testifying, wear a confident expression, but do not smile or appear downcast.24.
- Occasionally, a defense attorney will ask you if you have talked to anybody about this case.
- If you say, “No,” the judge or jury knows that isn’t right because good prosecutors try to talk to a witness before he or she takes the stand.
If you say, “Yes,” the defense lawyer may try to imply that you have been told what to say. The best thing to do is to say very frankly that you have talked with whomever you have talked prosecutor, victim, other witnesses, relatives, and that you were just asked what the facts were.
All we want to do is to tell the truth as clearly as possible.25. Now, go back and re-read these suggestions so that you will have them firmly in your mind. We hope that they will help. These are not to be memorized. Again, if you remember that you are just talking to some neighbors on the jury, you will get along fine.
If you have any questions after reading this call Sandy Place, Victim/Witness Coordinator 906-225-8315 or Diane Ziegner, Victim Advocate at 906-225-8323
What are open questions examples?
Open-ended questions are broad and can be answered in detail (e.g. “What do you think about this product?”), while closed-ended questions are narrow in focus and usually answered with a single word or a pick from limited multiple-choice options (e.g. “Are you satisfied with this product?” → Yes/No/Mostly/Not quite ).