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If a person is going to try a lawsuit or enter the profession of a lawyer, he or she must first understand the trial process and then determine his/her role there. Trying lawsuits, individuals are doing something that has been done for centuries. There are the principles of presentation and argument that have been validated through experience. Jurors think they are adding to the store of justice in the world. They are striving to reach the right result, consistent with their values, oaths, and the law and evidence.
Wall (2009) observes that nowadays, new-coming lawyers prefer to spend more time with law books than with witnesses. In the same vein, some lawyers ignore witnesses as they prepare to try a big case. Witnesses are more important in the investigation process at present than two or three hundred years ago.
The research asserts that to evaluate the evidence and make sense of it, crime investigators should use the basic ideas of the human condition. They try to figure out what happened so that they could do something about it. To identify witnesses and plan the trial, it is important to choose a story. As a rule, there is a need to prepare a complex affirmative defense to a criminal case and bring witnesses to support it. To elicit the cooperation of the witness and collect evidence for the case are not easy tasks.
A witness can contribute substantially toward justice within the case. However, witnesses are not always cooperative, and criminal investigators may have difficulties finding evidence for the case. Wall (2009) reports that the purpose of the crime scene search is to discover evidence that will be useful in determining what actually happened, with the ultimate goal of developing suspects. Therefore, the investigator should use all the possible techniques and methods to establish close cooperation with a witness.
The Role of a Witness
A witness is a person who provides testimonial evidence. He/she knows or claims to know some details about the matter that are not known by others. This definition shows that the role of a witness is crucial to the case. A witness has to demonstrate a combination of some special tools, such as a good memory, the ability to use exact words, gestures, and others. Oftentimes, witnesses significantly exaggerate the information. Thus, the jury does not understand the content of their testimony because it can be rather critical.
For example, if it is asked about the condition of a victim of assault a lay witness could relate certain facts, such as she was bleeding from her forehead, or she was unconscious on the ground for several minutes. However, a lay witness could not give information about the medical extent of the victim's injuries, such as whether she suffered from a structured skull or internal bleeding.
When the case needs a scientific, medical, or technical approach and scientific skills, defense attorneys call an expert witness. These witnesses are well-trained and have experience in different specialized areas, such as medicine, ballistics, or computer technology. A witness is an important person who should help the plaintiff to establish the facts which support the case. Being directly examined, a witness can help the plaintiff. However, no conclusions or judgments can be drawn from the evidence of a witness unless he or she is a qualified expert.
In the book Evidence, the author notes that problems may arise from the characteristic of a witness, such as age or fluency in English, or they may arise from a particular kind of testimony, such as character evidence (Emanuel, 2007). As it is noted above, a witness can make a significant contribution to justice within the case. For example, a witness in the international criminal trial would often be under protective measures, which are conditional upon the testimony of a witness but are also applicable to victims (Emanuel, 2007).
The practice has shown that witnesses are well informed about the consequences of their failure to appear in court in response to a validly issued subpoena. To ensure that the duty to testify is respected, national legislations provide for the obligation to appear, and coercive orders or subpoenas are to be issued by judges.
Examination of Witnesses
A crime scene investigator should realize that witnesses are crucial in the investigation of the case. Asking questions about the sequence of events, the prosecutor tries to determine the defendant's fault. This form of questioning is known as the direct examination. During direct examination, it is not allowed to ask leading questions that consist of a particular desired response.
For example, the prosecutor should not ask the witness: Did you notice the defendant threatening the victim with a broken beer bottle? A proper question could be as follows: Please describe the defendant's manner toward the victim during the incident. The fundamental purpose behind testimony is to establish the truth. If a crime investigator believes that his/her witness is fearful of something and is uncooperative, he/she should use different tools to make this witness feel free for cooperation to receive strong evidence.
Trigar (2003) notes that there are no difficult witnesses. There are difficult direct examinations. In fact, it is a challenge to the investigator's techniques, skills, and knowledge. It is important to treat a witness with dignity and respect. Direct examination of witnesses is conducted by leading questions and refreshing memory. Questions should be asked only about a material matter. It is forbidden to ask questions about disputed matters.
Another type of examination of witnesses is cross-examination. The defendant's attorney starts cross-examination after the plaintiff's questions. Cross-examination is a fundamental right in the US justice system. It can help collect more evidence than direct examination because the attorney may ask leading questions.
During cross-examination, the attorney asks provocative questions, trying to show the court that the witness is not reliable. It is a challenging process for the witness. Cross-examination is a chance to confront the other side's testimony. At trial, witnesses have one advantage over the lawyer. The jury knows that a witness is at the lawyer's mercy; he/she must patiently answer the lawyer's questions without objections and cannot ask own. Witnesses can hold their advantage by being humble and honest, but they often get into trouble on the stand by becoming advocates (Tigar, 2003). They volunteer information beyond the scope of the question, giving opinions and conclusions that are self-serving.
Cross-examination allows a lawyer to take command of the courtroom to reveal the truth to everyone present and often to either win the case or secure a favorable resolution for the client. During cross-examination, a crime investigator may feel fair. As a practical matter, he/she is in total control; nothing happens until he/she speaks. A witness is not allowed to ask questions, though his/her answer can be sarcastic, long-winded, or nonresponsive. A lawyer can show the jury through his/her questions and demeanor that he/she is acting inappropriately.
Preparation of the Witness
Preparation of the witness is a kind of art, and a trial attorney needs to know special techniques to do so. First of all, it is necessary to determine the reasons that make the witness tell the facts honestly. A witness may have psychological or ethical problems that prevent him/her from testifying falsely. The attorney's ethics must be clear to a witness to encourage him/her, to tell the truth. It would be rather helpful to demonstrate ethical leadership. Sometimes, even one sentence can make a witness speak more openly and confidently. The research asserts that witness preparation is an essential part of trial preparation (Best, 2009).
Moreover, a witness may expect a lawyer's help because he/she is not experienced in it. There are some important steps in witness preparation:
- to interview a witness before he/she can testify in court;
- do not press a witness to refrain from testimony to another party;
- to explain to a witness the importance of his/her truthful testimony;
- to discuss the applicability of the law;
- to provide the rehearsal of testimony;
- to suggest a choice of words that might help a witness sound clear.
When preparing a witness, a lawyer may suggest that he/she uses one word instead of another. For example, a lawyer might instruct a witness to use the word hit instead of smashed for a car accident. A lawyer is also permitted to suggest a choice of words that can help a witness in court and clarify his/her testimony. There is nothing unethical about making suggestions regarding the witness's wording as long as they do not encourage or result in false or misleading testimony. Wall (2009) suggests that the lawyer must always conduct conversations with the witness in a manner that is least likely to result in inaccurate testimony or a change in the witness testimony that deviates from the truth.
The courtroom creates anxiety and its accompanying symptoms, such as sweaty palms, flushed skin, shortness of breath, and dry mouth. It leads to a sense to be totally out of control and can turn into panic. The criminal justice system is not an orderly, logical, or seemingly fair system, but one that appears chaotic rushed, and filled with dilemmas. Even lawyers and judges seem to be confused at times. Witnesses might be even more confused. The goal of a criminal investigator is to ensure a witness tells the truth, to demonstrate what he/she knows, and to be fair in his/her assessment. The judge and the jury must be well-informed so that they can make good decisions (Tigar, 2003).
Preparing a client for testimony is a laborious task. The important goal of the witness preparation process is to use the facts learned from the preliminary investigation to frame questions to the client before the same questions are asked by the staff during the actual examination. As a general matter, it is best to discuss questions relevant to each subject in chronological sequence. A witness should become particularly familiar with any testimony, affidavit, or sworn statement that he or she has already given on subjects pertinent to the likely areas of the staff's questioning.
The final stage of witness preparation may include a mock examination that will enable counsel to demonstrate some of the advice previously given to the witness about how to answer the staff's questions. A mock examination can identify problems that a particular witness may have in answering questions while there is still time to address these problems. Conversely, a successful mock examination is likely to relieve the anxiety of a witness.
The Role of Evidence
Attorneys may give a brief version of the facts and the supporting evidence that they will present at the trial. The danger for attorneys is that they will offer evidence during the trial that might contradict an assertion made during the opening statement. It may cause jurors to disregard the evidence or shift their own thinking away from the narrative being offered by the attorney. The trial proceedings start by presenting the state's evidence against the defendant. As a rule, courts issue many complex rules about evidence, their types, and the way they should be presented at the trial.
Actually, evidence is something that can prove the existence or non-existence of the fact. In practice, evidence can be divided into testimony and real evidence. Testimony is a statement of competent witnesses. Real evidence is presented by any physical items that affect the case (e.g., alleged murder weapon, bloodstained piece of clothing, etc.).
According to the research, the rules of evidence serve to demonstrate that testimony is relevant, reliable, and not prejudicial to the defendant (Emanuel, 2007). One of the tasks of the defense attorney is to challenge the evidence presented by the prosecution, establishing that the evidence is not reliable. Definitely, the prosecutor often tries to demonstrate the irrelevance or unreliability of evidence presented by the defense.
The final decision on whether evidence is allowed before the jury rests with the judge, in keeping with his or her role as the referee of the adversary system. The practice has shown that evidence cannot be admitted in court unless it is relevant to the case being considered. Relevant evidence tends to prove or disprove the facts.
The Investigators Research
Many professionals argue that research can range from investigation and experimentation to personal inquiries and the search of a scene in which the crime took place. It is up to the investigator, depending on the responsibility, the type of case, and its magnitude, to consider the numerous sources of information available. In one situation, one may collect and examine the physical traces of a crime, such as weapons, tools, fingerprints, documents, etc.
In another situation, one may collect descriptive information about the subject, check the records, and corroborate verbal data from witnesses. With the help of an investigator, an interviewer can ask some questions about the case and decide how to conduct the research.
The ability of effectiveness of an investigator depends greatly on the amount of significant information obtained from people. An interviewer must be aware that the emotional involvement of a community can create problems of confusion and distortion. In this regard, he/she must guard against premature decisions about guilt or how a crime was committed. Collecting evidence at a crime scene, an investigator should follow five main steps in its processing, such as interview, examination, photograph, sketch, and process.
The crime investigator should follow the guidelines of processing the crime scene. Many investigators are sure that it is important that each step of the process and every action taken are to be documented extensively by using notes, photographs, sketches, and reports (Wall, 2009).
Providing research, a scene crime investigator has to consider what is normal in the scene and what is evident. It is important to interpret evidence. An investigator may find out that in fact, there was no crime committed. Evidence demonstrates an individual's guilt in criminal activity. Tigar (2003) notes that the police must have access to different evidence or testimony indicating the case as criminal activity. The role of the criminal investigator is to find evidence.
For example, the police may receive facts from informants who have had contacts with the person suspected of criminal activity and can provide specific information regarding their conduct, such as phone conversations about the crime or the exact location of criminal evidence. If the police have discovered the highly suspicious activity, the court may find a probable cause.
Collecting Crime Scene Evidence
Collecting crime scene evidence, an investigator should elicit the cooperation of the witness. Depending on the evidence and testimony from witnesses about the crime, an investigator has the typical tasks of collecting all the available information, recreating the crime, and identifying the criminal. Consequently, he/she might proceed with safety and plan all aspects of developing the case. There is always a chance that somebody has become a witness of the crime.
Thus, this person might observe a robber leaving the scene of the crime, walking out the back door, or crawling through the window. It may strike fear into a witness who should testify and support evidence of one's guilt. Cases have shown that many witnesses become frightened and do not want to cooperate with the criminal investigator. Thus, the latter should find specific techniques to make a witness feel free to testify and tell the truth.
The complexity of investigating criminal activity requires assistance from many sources and careful coordination of the activities associated with reconstructing the crime. Physical evidence and accounts by witnesses are assembled to establish a logical sequence of events (Best, 2009). Using clues, examinations, and tests, the facts of the crime and important information, such as the cause of death, weapon, etc., are collected.
Ultimately, an investigator will face suspects and key witnesses in interviews and interrogations. He/she will collect additional information and testimony that will establish whether or not the crime was committed and significant facts that the prosecution will use in the trial that will be conducted before a jury. To collect crime scene evidence, an investigator should determine how the crime occurred and document this information thoroughly. It is advisable to place markers for each piece of evidence (e. g. photographs). The lab will identify what is evidence and what is not.
The role and function of a criminal investigator are to determine the existence of the crime, collect evidence to identify suspects and arrest them, and clearly document the findings. The actions taken during a crime scene investigation can play a critical role in the successful resolution of a case. An investigator should try to reenact the crime in his/her mind. Before search, it is important to ensure that the proper collection of evidence is sufficient for the crime scene.
The research has shown that a criminal investigator has to understand the defendant's condition for the proper evaluation of evidence. He/she tries to determine what actually happened. To find bystanders and plan the hearings, it is vital to decide on a description of events. In general, one should organize a combined confirmatory defense to the case and have eyewitnesses vindicate it. As a result, collecting evidence and inducing the cooperation of the witness are difficult tasks.
For this reason, an investigator must practice all methods and techniques that can help promote cooperation with a witness. The latter may play a key role in the case of justice. Nevertheless, witnesses do not often cooperate, and it can be difficult to get convincing evidence.