The Different Types of Witnesses

Witnesses are used regularly by prosecutors, plaintiffs, and defendants in both criminal and civil cases. There are a variety of different witnesses that can be called upon to help determine whether a party is guilty, to assist a judge in sentencing, or to help the court interpret facts in complicated cases that involve technical topics. Regardless of whichever side calls the witness, both parties have the chance to cross-examine and question them to determine their understanding of the case as well as their credibility.

Expert Witnesses

Expert witnesses are utilized in both civil and criminal cases. An expert can be anyone with extensive knowledge or experience in a unique discipline beyond that of the average lay person. In a case, if technical, scientific, or other specialized knowledge is determined to be necessary to help to understand the evidence or to determine a fact in issue, an expert witness may be called upon.

An expert witness can be called upon whether they have knowledge directly relating to the case or if they hold comprehensive knowledge about an incident or fact in question.

Expert Consultation
For example, in a product liability case, a forensic accident reconstruction expert may testify on whether or not the airbags were correctly installed or if there was faulty equipment that led to the accident in question.In a medical malpractice case, an anesthesiologist might testify to the effects of certain anesthesias and the amount allocated to certain patients under specific circumstances.

Expert witnesses are expected to clarify technical terminology and topics into speech that can be readily understood by a lay audience. This includes attorneys, judges, and jury alike.

Lay Witnesses or Witnesses of Material Fact

Persons who are called upon to speak regarding particular facts are the most common types of witnesses. Referred to as lay witnesses, these people are testifying only about the facts or their observations of an incident. These witnesses usually do not possess a particular expertise in their given field. Lay witnesses must only testify to the facts of a particular incident and are expected to keep their opinions to a minimum.

For example:
This would be the case of a police officer who is giving an account of a traffic stop, but only testifying to his observations of what occurred. Similarly, if a witness is called to testify about a burglary (or any crime) they saw, they may only speak about the alleged criminal activity that was witnessed.

Eyewitnesses are often called to testify in court about things they saw firsthand. In some cases, lay witnesses may be called upon to testify not on things they saw first hand, but in situations where they can offer additional information to corroborate a point of interest in the case.

For example:
A teacher may be called upon in a custody case to give information regarding the child’s attendance or behavior in class.

Character Witnesses

Character Witness in CourtCharacter witnesses testify on behalf of a person most often concerning their ethical qualities, demeanor, or personality. Character witness testimony is primarily used when the party’s morality or integrity is under question. These witnesses are particularly relevant in criminal cases when the defense is attempting to prove their client would not commit the crime in question.

For example, neighbors or co-workers may be called upon to testify about the defendant’s place in the community or at work. Their testimony would relate to what they observed about the defendant’s actions or demeanor.

Character witnesses can be lay people, like neighbors, or experts, such as a defendant’s psychologist.

Witness Personalities

1. Cooperative/Truthful

This type of witness is a boost to any case. An honest and cooperative witness is a person who has relevant information and is willing to share it. Savvy attorney’s always question a person’s willingness to share information.

Do they have hidden motives? What is their relationship to the case?

Once a person has been determined to be genuinely cooperative, attorney’s should seek as much information as possible. The statements obtained should then be compared to other witness statements to ensure no inaccuracies.

2. Hostile/Untrustworthy

These types of witnesses purposely lie in an attempt to disrupt the investigation. If it has been determined that this person is lying the next step should be to find out why. Are they related to any people involved in the case? Do they have a distrust of police or the legal system? Discovering their motivation for lying is a successful way to work around their deceit. Once the reason for their deception has been determined, investigators and attorneys can work backwards and attempt to build leads.  

3. Shy

A shy or timid witness must be handled carefully if either party wishes to receive a statement. It is recommended a rapport is built with these types of witnesses before questioning them. If they feel safe or trust the attorney this can often lead to a statement. Shy or timid witnesses can be victims of sex crimes, foreigners, or even people distrustful of police or the political system.

4. Fearful/Reluctant

A fearful witness has information, but may be reluctant to share it. These types of witnesses are reluctant to getting involved in the case for fear of retribution from perpetrators or any other involved party. This is often the story surrounding gang or organized crime cases.  

Attorneys or investigators must be patient when working with these types of witnesses. In general, these people are not against sharing information if they feel safe.

4. Disinterested/Unwilling

These witnesses make it obvious they do not want to participate in the trial. One of the more difficult witness types to interview, silent or disinterested witnesses should still be questioned. All too often attorneys write down a name and number then chalk it up to a lost cause, which can be a mistake.

Even a simple statement describing where they were and that they did not see what happened can be beneficial to a case. If this witness returns with a different story later in the trial, in can be refuted.

Understanding your Witness

Every witness is different because every person is different. They draw from different backgrounds, personal, professional, and educational. In most legal cases, both parties must provide witness lists which reveals all people who will be called upon to testify. When the discovery portion of the trial begins both the prosecution and defense can question the other party’s witnesses, under oath, to get a feeling for each witness’s demeanor, which can reveal how they plan to answer questions later when the trial begins.