1. Ryan Elder
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    Ryan Elder Contributing Member

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    Does a witness have the right to an attorney in court?

    Discussion in 'Research' started by Ryan Elder, Sep 10, 2016.

    I was watching the O.J. Simpson trial for research and it seems that when Mark Furhman testified, he had an attorney, next to him who he would ask how to answer certain questions. Or was that someone else near him? I was wondering cause for my story, it may help for a witness to have a lawyer, object to certain questions. But can that be done legally?

    The prosecutor does not have motive to object to the questions and I don't think the defense attorney would be allowed to either. But can the witness's own lawyer?
     
  2. thirdwind
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    thirdwind Contributing Member Contest Administrator Reviewer Contributor

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    Witnesses have the right to a lawyer in most cases. The witness also a constitutional right to refuse to answer if it will somehow implicate him/her. In that case, the witness can consult with his/her lawyer. For other questions, the witness must respond.
     
  3. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. What if the prosecutor asked the witness questions that could incriminate someone else? Does the witness have to answer then?
     
  4. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    There are a number of standard conditions under which a witness may be able to refuse to testify. These include the right not to incriminate themselves (pleading the fifth in America), if they are in a privileged relationship with whom they are required to give evidence about - eg priests, psychiatrists, doctors, husbands and wives etc.

    In other cases witnesses may be compelled to give evidence - ie subpoena etc. But if they are not compelled togive evidence they may choose not to testify. And in many cases prosecutors will notcompel witnesses because it may lead to poor evidence being given by a hostile witness.

    Cheers, Greg.
     
  5. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thank you for the advice. Well I am rethinking my plot, and have another legal question, if that's okay...

    Let's say there is a court case, that is a kidnapping case, where one of the kidnappers is indicted, but the victim does not want to testify or get involved. Does the defendant's attorney have the right to look at the victim's statement to police, if she is not going to be a witness on the prosecutor's list? What if the statement was not going to be used as evidence, but the prosecution was going to use other evidence? Does the defense attorney, still have the legal right to see the statement?
     
  6. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    A lawyer would answer this better, but yes. Everything written down is documentary evidence and if it's part of the case it can be used - by both sides. However, you come up against what's called the "best evidence" rule. A statement made but not backed up by direct testimony is not best evidence and the defence would immediately point this out. A documentary statement unsupported by testimony does not carry the same weight as an actual live witness in a courtroom - because you can't cross examine a statement. The only time you would want to use that sort of evidence would be if the witness was absolutely unavailable - say because of death - in which case it becomes the best evidence available. Further has that statement even been sworn?

    Your real issue would be with the prosecution. Unless they have a shit load of other better evidence - DNA, blood, trace, video etc, they would not want to go to court with a case if their lead witness refused to testify. And though they could compel her to - that almost never happens as no one compels their own witness. You get a witness who has to be treated as hostile to her own side.

    Cheers, Greg.
     
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  7. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. What if a witness had exculpatory evidence and offered it the prosecution, but the prosecution did not want her as a witness... She goes to the defense side, but the defense does not want her either, thinking that the exculpatory evidence, could go the other way, and backfire on his client.

    Can a witness come to court to testify on her own accord, if neither the prosecution, nor the defense wanted her, but the judge was still interested? Can a judge make a ruling on a witness, cause he is curious, if neither prosecution or defense wanted her, but she has something to offer?
     
  8. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    The Best Evidence Rule relates to production of an original document to prove the contents of that document. It has nothing to do with a statement not being supported by direct testimony.

    Edited to add:

    The Sixth Circuit explains the rule in overturning a lower court decision to reject evidence based on a misapplication of the rule (which is Rule 1002 under the FRE):

    "[T]hese averments themselves were not offered to ‘prove the content of a writing.’ By its terms, that is the only time that Rule 1002 applies. The district court concluded that the averments in the affidavit were deficient because they were not ‘the best evidence of when Plaintiff Prater reported to work on any given day.’ The best evidence to prove that contention may be the schedules, but requiring the best evidence available (here, apparently, the schedules) to prove something besides the ‘content’ of the schedules is not what the Best Evidence Rule demands. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1543 (11th Cir. 1994) (“Rule 1002 requires production of an original document only when the proponent of the evidence seeks to prove the content of the writing. It does not, however, require production of a document simply because the document contains facts that are also testified to by a witness.”) (citations and internal quotation marks omitted); see also Simas v. First Citizens’ Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999) (quoting Allstate for the proposition that “there is no general rule that proof of a fact will be excluded unless its proponent furnishes the best evidence in his power” and reasoning that a plaintiff “can prove he filed a loan application simply through his own trial testimony” and does not need to furnish the application)." (Emphasis added)
     
  9. psychotick
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    psychotick Contributing Member Contributor

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    Hi Steerpike,

    I may have used the wrong term - it's twenty plus years since I did my limited legal courses. But what I can tell you is that when I was asked to give evidence for the prosecution in various trial, I could prepare and swear all the statements I liked as a witness. However I had to turn up at the trials and read my statements aloud so I could be cross examined on them. The value of the statements for me was as a memory aid, for the prosecution as a way of leveraging an early confession from a witness as well as making sure there was no claim of the defence not having been informed in advance of what was going to be said, and for the defence in preparing their cross examination.

    If I had not been able to attend the trial the trial would have been delayed or deferred, and in the only case I know where a colleague refused to testify (nerves) the trial was abandoned.

    The simple fact is that at least in New Zealand twenty years ago, sworn witness statements were not considered as having sufficient weight compared to oral testimony.

    Cheers, Greg.
     
  10. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. But I find that the law as written is kind of vague and open to interpretation. If neither the prosecutor nor, the defense would want a witness, but that witness happens to know important facts of the case, could the judge allow him, himself?
     
  11. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    Not certain, and it's going to vary I would guess from country to country and judiciary to judiciary. I do know that in civil court in New Zealand judges sometimes do call their own witnesses - though it's usually only in a technical capacity - as in the evidence given by the witnesses of the other parties is complex and they need to get a handle on things.

    But in a criminal trial? Not sure. If they did they would run the risk of introducing bias to the trial - favouring either the prosecution or the defence - and they can't do that. It's an adversarial system and it's up to each side to present the best case it can. I would think it more likely that if a judge knew of such a witness with significant evidence and didn't see his name called he would call the lawyers for both sides to his chambers and ask why neither had called him. It might well be that both sides have good reasons for not calling the witness - as in he would weaken their case.

    There might be one condition under which a judge might call his own witness - to prevent a known miscarriage of justice from occurring. But you'd have to check that out with a lawyer.

    Cheers, Greg.
     
  12. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Well in my story a witness comes forth, with the truth about what happened. And neither side wants the witness, cause it means neither side will win as a result. So would the truth count as being in the interest of justice, and therefore the judge, can call the witness himself maybe, in that same capacity?
     
  13. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    Again not sure. But it seems unlikely that a witness with evidence about what actually happened, could establish the defendant as being both guilty and not guilty of the crime.

    Cheers, Greg.
     
  14. thirdwind
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    thirdwind Contributing Member Contest Administrator Reviewer Contributor

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    How would this work? If I'm interpreting this correctly, then this is good for the defense because it creates reasonable doubt.
     
  15. Ryan Elder
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    Ryan Elder Contributing Member

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    It is good for the defense, but it could backfire, if the prosecutor asks the witness certain questions that could incriminate the defendant indirectly, but lead to another investigation. It's a risk, since the defense does not know all of what the prosecution knows, and does not know what questions the prosecutor will ask.
     
  16. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    OK so you're saying that the defence would not want to call Witness A because his testimony would say he did not murder person B because at the time the witness saw him murdering person C, or something of that nature.

    For the defence that becomes a balancing act, and one they have to work their way through carefully. But the defendant is being tried now for the murder of person B and if they introduce this evidence there will at least be a delay while he get's set up to be tried for person C. So it buys him some time.

    For the prosecution, why do they have a vested interest in convicting an innocent (of murdering person B at least) man? If they know about this evidence and believed it, why wouldn't they just drop the trial, send their investigators out to find the actual offender while the prepare their new trial? After all if they convict the defendant of murdering B it becomes impossible for them to then turn around and convict person C. So they end up with one offender walking free of his crime of murdering B and another victim C, whose crime has to remain forever unsolved.

    Also as agents of the court they have a duty to ensure that no miscarriage of justice occurs.

    Cheers, Greg.
     
  17. thirdwind
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    thirdwind Contributing Member Contest Administrator Reviewer Contributor

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    See this link on criminal discovery. Here is a paragraph from it explaining the disclosure of evidence:
     
  18. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    @thirdwind there are, of course, unethical prosecutors who hide such evidence and prosecute people they don't believe are guilty.
     
  19. thirdwind
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    thirdwind Contributing Member Contest Administrator Reviewer Contributor

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    True. I guess I always assume lawyers are good, ethical people. :D
     
  20. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Mostly true :)
     

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