Sunday, January 6, 2019

What Makes a Good Witness? Info for writers and other curious folks

The information for this article came from notes I took at a recent crime scene preservation class.

Striker paused while he looked at the cufflink and put it in his jacket pocket. “While you were flirting with criminal elements, Command called. I have information on Wilson.”
I didn’t like the tense muscles under his eyes; this wasn’t good information. I raised a questioning brow.
“Wilson’s stable. In police custody at Suburban. He’s being charged with breaking and entering with intent to harm, and possession.”
I waited for the rest of the charges.
Striker pursed his lips.
“What about six murders and an attempted murder?” My voice squeaked.
“The D.A. is having trouble putting together a case. The original six were linked to you by the MO. We have no evidence. None. Though they’ve been working on developing the case since your attack.”
“But what about me? I can testify. And the neighbors saw him, too. We confirmed the police sketch. Surely—”
“Subsequent to seeing him, you sustained a traumatic brain injury. The defense can shred your eye-witness report on the witness stand. Same with the neighbors. They were running in the dark. Could be a look alike. With no prints, no DNA, no motive linking you two, the prosecutors need something more or they can’t make the case.”
“Has nothing. Not his fault. Wilson may be juiced, but he’s highly trained, very smart, and obviously effective.” Striker waited.
I wasn’t sure what he wanted from me by way of response, so I offered up a curt nod.
“Is there anything more from your ‘knowings’? Anything more we can work with?”
I shook my head and looked down at my lap.

In WEAKEST LYNX, the first book of my Lynx Series, Lexi discovers that to show up in court and for her testimony to count, she has to be a reliable witness. Anything that the defense can find to bubble up even a soupcon of reasonable doubt would indeed be used to sway the jury to favor ther client.

What if you want your character to be a good witness to help you move your plot forward?

First - decide what kind of witness your character will be.

  • Lay Witness - could be anyone. This is a sensory witness: I saw, I heard, I smelled...
  • Expert Witness - Needs to have a background to interpret something for the jury. It includes opinion or conclusion and to do this they must be declared by the court to be an expert witness.
    • In the state of Virginia, where I live, being an expert witness doesn't require a lot. One of these could do:
      • Know more than the average person about a subject
      • Prior litigation where they were declared an expert witness.
      • Experience
      • Training
      • Certification
      • Ability to explain training methods
      • Ability to respond to hypotheticals

They need to show up to court. 

  • Yes, court can be tedious
  • Yes, someone might be threatening your witness
  • Yes, babysitters sometimes don't show up and cars sometimes don't start. But to be a good witness you have to get there.
  • If your character doesn't show up, they can face stiff fines and even jail time.
They need to be credible.
  • Never lie
  • That means telling the truth even if your character thinks it will harm the case.
  • If a statement in court differs from an earlier statement, the prosecutor has to inform the defendant. 
  • Lying includes making up information to fill knowledge gaps
    • Proper responses to knowledge gaps might include.
      • I don't know
      • I don't recall
      • I didn't observe that
  • If your character lies, it could lead to felony perjury charges. And who needs that on their record?
Once the witness has been subpoenaed, they should not discuss the case with anyone. If they had notes, sketches, pictures, or other documentation, it would be helpful to review that and let the prosecutor know that the character has it. 

It would be helpful for our character to call the prosecutor to talk about their role as a witness so that the prosecutor clearly understand what they can and equally importantly what they cannot testify to.

The defense attorney can become quite aggressive as they try to tear down your character's reputation, expertise, or memory. This can be quite upsetting. It would be helpful if your character remains calm and polite.

While the lawyers ask the questions, the witness should talk to the jury.

Of course, all of that is if things are humming right along and going to plan. But now that you know what a good witness looks like, you can twist your plot around by having them respond badly.

Hope this helps!

When you buy my books you help support the continuation for this blog. In my fiction you can see how I apply my research; and maybe get some ideas percolating.


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