Most criminal cases – no matter how small or how large – involve the testimony of at least one witness. Witnesses are invaluable to the courts because they provide information that is pertinent to determining the guilt or innocence of the defendant. Both the prosecution and the defense are allowed to call witnesses to share their information with the courts.
There are several different types of witnesses in criminal law.
A character witness provides information related to the moral character of the defendant. Although he or she may have absolutely no knowledge of the alleged crime, it is important for the jury to be informed about the defendant’s personality and mannerisms. Character witnesses are most often employed by the defense when trying to demonstrate a precedent for innocence.
Eyewitnesses are people who have direct, firsthand knowledge of the crime. They either saw or heard it happen, and are present in court to give their version of events. Over the years, eyewitness testimony has been discredited by both the prosecution and defense as unsound, but they are still permissible.
The third type of witness is an expert witness, who usually has no knowledge of the defendant or of the crime committed. An expert witness gives testimony based on his or her extensive knowledge of a particular subject. For example, if the defense in a murder trial is claiming “not guilty by reason of mental disease or defect”, they might call a psychologist to the stand to explain why an insanity defense is applicable in their case.
In a criminal case, both the prosecution and defendant can call upon witnesses, all of whom will be issued a subpoena to appear in court on the day of the trial. Should a witness fail to appear in court, he or she will usually be held in contempt of court and the judge will issue a bench warrant for his or her arrest.
Before the trial, the defense and the prosecution have the right to prepare their witnesses for trial. They will go over each question that will be asked, and advised on their responses. However, if a witness does not wish to be “prepped” for trial, he or she has the right to say, “no” and to make no statements before court.
Witnesses are called one at a time during a criminal trial, are sworn in by the bailiff, and are asked questions by both the defense and the prosecution. The prosecution calls their witnesses first, and when they are through asking questions of each witness, the defense has an opportunity to cross-examine. When all of the prosecution witnesses have been called, the court proceeds to the defense witnesses.
Under the U.S. Constitution, defendants in a criminal trial have the legal right to face their accuser(s). This means that in order for witness testimony to be heard by the jury, witnesses must testify in front of the defendant. Often, this raises serious issues with witnesses because no one wants to sit in front of their attacker or the attacker of a loved one, especially in the case of children. However, even children are required to testify in front of the defendant.
In some trials, the defendant will be called as a witness, though this is the choice of the defense. The prosecution does not have the right to call the defendant without his or her permission, and in most cases, a defense attorney will not allow the defendant to testify. First, the defendant has rights against self-incrimination; further, the defense risks the jurors’ sympathy by placing the defendant on the stand.
The only person who is not allowed to be called as a witness is the defendants’ spouse. Spousal privilege under criminal law prevents a wife or husband from incriminating his or her spouse in a criminal trial. The only time that a spouse will be called as a witness is when the testimony is immaterial to the defendant’s guilt or innocence.