When a crime is being prosecuted, there inevitably are witnesses involved. This may include people involved in a crime, or who witnessed certain actions, and in some cases this people who were involved in other aspects such as a doctor who treated injuries, or a police officer who helped investigate aspects of the case. Despite the dramatic depiction of people storming into a courtroom, witnesses only appear at trial or at evidentiary hearings. Each side is required to disclose its witnesses prior to trial, giving the prosecution and the defense the opportunity to prepare for what witnesses may or may not say when taking the witness stand.
As a Wisconsin criminal defense trial firm, one of the things that we closely analyze in each case is the credibility of each potential witness. We analyze credibility from a variety of perspectives, including a witness’s relationship to the case, possible motives, appearance, and the way that an individual may testify. For example, say that there is a fight between two individuals, and the only witness to this altercation is the defendant’s brother. The brother is an obvious witness, and at a trial would almost certainly testify. The prosecution would likely try to undermine (or “impeach” in legal parlance) the credibility of this witness, implying that the brother would be likely to lie, or embellish certain facts, because he would have an inherent interest in helping his brother. Conversely, the defense would work with the witness to make sure the brother could articulate his recollection of events in a manner that did not seem biased against the alleged victim, or overly defensive of his brother.
A term that gets thrown around a lot on television and in movies is “character evidence”. On the screen a lawyer, just as likely to be the prosecutor as a defense attorney, starts a barrage of questions about a person’s life, usually detailing aspects of his or her life, from bad relationships to if they ever kicked a puppy. The end result of this questioning is to make the witness seem completely unreliable and secure a quick trial victory. In reality, this rarely happens, and even then, the scope of questions is limited. Character evidence is not limited to non-party witnesses, but also can apply to the defendant as well, if he or she decides to testify.
So what types of questions are typically permitted in questioning a witness? In general, questions that relate directly to the case at hand, but this has exceptions as well. For example, questions regarding an alleged victim’s sexual history in a sexual assault case are off limits, unless the defense attorney files a specific type of motion prior to the trial. Criminal histories are another area that are frequently asked about. Is someone’s criminal history fair game for questioning? The answer is maybe, and often only to a certain point. One determining factor is how long ago the person was convicted of a crime. In general, convictions less than ten years old are more likely to be admissible. And, generally speaking, the fact that the person has been convicted of some number of crimes is typically admissible, while the substance, or facts, of those crimes are typically not. Crimes involving dishonesty (like theft or fraud) are more likely to be relevant to a witness’s credibility than something like an Operating While Under the Influence of an Intoxicant. One thing to remember is that the witness is not on trial: unless an attorney can prove how something is directly relevant, it is unlikely that a judge would permit excessive and detailed questioning of a witness about his or her past.
Witnesses at Trial
When it comes down to it, proper witness preparation is a huge factor at trial. Most people do not have frequent interactions with the criminal justice system, and testifying can often be an intimidating and nerve-racking experience. A good defense attorney will want to have direct and cross examinations thoroughly prepared prior to the trial, and to have spoken with and prepared important witnesses prior to trial. This allows an attorney to explain what to expect and to go over what may or may not be allowed to be discussed in court.
At Nicholson & Gansner we pride ourselves in our aggressive trial style, and in our detailed trial preparations. This type of dedication has lead our office to receive awards for our trial skills, including a Hanson Award (an award for a straight acquittal in a homicide trial), as well as make history in Wisconsin by receiving the only not guilty by reason of insanity or mental defect in a double first degree intentional homicide case. If you or a loved one is currently facing criminal charges in Wisconsin and a criminal trial, contact the history making, precedent setting Wisconsin criminal defense trial attorneys at Nicholson & Gansner.