Being accused of a crime is a frightening, life-changing experience. One woman, a witness, who was falsely accused of the murder of her best friend, described it this way,
“…a gunman stormed into the room and opened fire. I was kidnapped. The shooter had me leave with them and forced me to a house nearby. They held me against my will. I thought, ‘This is where I’m going to die….”After a number of hours, a SWAT team rescued [her] and she was taken into custody….”The next thing you know, I’m being charged with first-degree murder.”
After six days behind bars, the charges were dropped and she was freed. But the woman’s life got worse after her release. She hid from society for a month.
“People on social media were very ugly. People called me a murderer, a whore, a crackhead, worthless piece of scum.”
When someone is accused of a serious crime and brought to trial, the state becomes the accuser. The prosecutor, employed by the state represents the accuser. In the trial, testimony is taken to support the case for guilt by people who have evidence supporting the conviction, as well as witness who support the innocence of the defendant. In many states, if the defense council has evidence that the prosecutor is biased or that the trial cannot be fair because of a clear bias, a prosecutor can be dismissed by the judge and a new prosecutor assigned. Otherwise, the defense attorney is faced with counteracting the evidence given by witness for the state. Witnesses for the prosecution can be countered as unreliable witnesses and testimony can be discounted on the basis of personal qualities like mental instability, criminal history.
According to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution,
“in all criminal prosecutions, the accused shall enjoy the right… to be confronted by the witnesses against him.”
In open trial, the testimony given by witnesses can be impeached with evidence of bias, if the witness can be proven to gain materially from a conviction. The witnesses testimony can be dismissed with evidence that he or she is not a witness who can be relied upon to make accurate observations. The witness must be confronted with the evidence before his or her testimony is dismissed. If the witness denies the disqualifying evidence, it can still be introduced in cross-examination, but only if the evidence is extrinsic and can be delivered in the form of documents or sworn testimony.
Cross-examination of witnesses is an absolute right for accused people in court. There are usually two kinds of cross-examination,
- Those intended to enter new facts and details.
- Those intended to raise questions about the credibility of witnesses.
A witness’ credibility may be attacked or supported by testimony about the witness’ reputation regarding untruthfulness. Witnesses can defend themselves but only after their truthful character is attacked. In a criminal trial, extrinsic evidence (which consists of external documents that have to be interpreted or which themselves can be questioned) can be brought into the trial to attack or support a witness’ character for truthfulness.
The reason for caution in the inclusion of witness testimony in trials is that eyewitnesses are often inexact and error prone. According the Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions. Wrongful-conviction due to witness misidentification has been repeatedly proven using DNA testing nation-wide. Prosecutors have made use of unquestioned testimony of witnesses where viewing conditions were unfavorable (e.g., from the back of a police car hundreds of yards away in a poorly lit parking lot). Doubtful witness testimony has been used when the witness had substantially changed their description of the perpetrator’s height, weight, or facial hair features as they learn more about the subject. Witness testimony has been used even when witnesses themselves are hesitant after multiple photo arrays or lineups.
In May of 1965, a person wearing rap-around sunglasses and a straw hat robbed a credit union in Warren Michigan. A suspect, named Louis Nasir was identified from a book of “mug shots” and from a one-man yes or no “show-up” through one-way glass. The jury convicted Nasir rather believing the three witnesses who placed him at work at the time of the robbery. Nasir spent more than a year in prison before the real bank robber was found. There was no legal way to disqualify the evidence the erroneous prosecution witnesses presented to the jury [Chemay, F.E., Louisiana Law Review, 45, 3, 1984].
Alex DeMarco is a St. Paul Criminal Defense Lawyer in Minnesota. Please contact us to learn more about our practice.