Criminal Law

Criminal Law Witnesses FAQ

Q: Can a confidential informant be made to testify in court?

  • A:Possibly. A confidential informant or source is a person who assists the police by providing information used to charge or convict another person of a crime. The informant might be acting only out of a sense of duty to help apprehend violators without regard to personal gain. This kind of informant is called a "citizen informant." Other informants provideinformation in exchange for money. And still other informants provide their information in exchange for leniency in matters involving their own wrongdoing.

    Prosecutors must disclose the informant's identity if it wouldbe relevant or helpful to the defense, or essential to giving the defenant a fair trial.Common examples of this are where the informant was an eyewitness to, or a participant in, any of the offenses that were charged.

    An informant can be made to testify at either a pretrial hearing or at a trial. For example, if the informant's identity is ordered disclosed because she was the source of information for a search warrant, and was present and witnessed the illegal acts that resulted in the warrant being issued, the informant might have to testify as a witness at a hearing before trial in which the defense argues the warrant was improperly issued.

    If the police or prosecutor don't want to reveal the identify of the informant, either for the informant's safety or so as not to "blowhis cover" so the informant can be used in future cases, they'll go to great lengths to avoid having the informant testify. But in the end, it's up to the judge. She'll balance the request not to disclose the informant's identity against the constitutional rights of the accused to present a defense and to have a fair trial.

Q: Can a husband or wife be forced to testify against his or her spouse?

  • A:It depends on the laws of the state where the trial is being held. Some states prohibit a spouse from testifying against the other spouse without consent. Other states let the spouse choosewhether or not to testify. The laws prohibiting a spouse from testifying without consent were designed to protect the sanctity of marriage and ensure that spousal communication and actions would be protected as privileged. The law also varies in regards as to whether a former spouse may testify against the other spouse.

Q: Can I be forced to testify?

  • A:Yes. If the defense or the prosecution thinks you know something that's important to the case, they may ask the judge to "subpoena" you. A subpoena is a court order requiringyou to show up at court at a certain date and time and give testimony in court. A subpoena may also require you to bring documents to court that the defense or prosecution thinks are important.

    If you ignore the subpoena and don't appear in court, you may be held in contemptof court. The punishments for contempt include a fine, jail time, or both.

Q: Can I go to jail for committing perjury?

  • A:Yes. The crime of perjury is the making of a materially false statement under oath with the belief that the statement is false. Under federal law, perjury is punishable by up to five years in jail. The length of any jail term, as with all federal crimes, will be determined according to the US Sentencing Guidelines(USSG). Perjury is also punishable under state laws.

    The purpose of perjury statutes is to keep the process of justice free from false testimony.

    The best-known form of perjury is falsely answering a question while testifying as a witness at a trial. Before you could be found guilty of perjury, the government mustprove beyond a reasonable doubt that you knew what the question meant and that you gave knowingly untruthful and misleading answers in response to the questions. In other words, your knowledge and reasonable understanding as to what was meant by the person asking the question is critical to deciding whether you committed perjury. The government has to prove your statement was false at the time you made it. False testimony that'san honest mistake isn't perjury.

    In addition to perjury being a crime in itself, a defendant can receive increased punishment under theUSSG for providing a materially false statement to a judge, law enforcement officer, or probation officer.

    If youto take an oath to tell the truth, it's important that you do so.

Q: Do I have a duty to cooperate with police?

  • A:No, you don't have to answer any questions or supply names to the authorities. Neither you nor anyone else has a legal obligation to assist the police in solving a crime. While you may feel morally obligated to do so, there is no legal obligation to do so.

Q: Is someone with a felony conviction allowed to testify?

  • A:A felony conviction doesn't prevent a person from testifying as a witness.

    Depending on how long ago the conviction occurred, the witness could be confronted with it in front of the jury. This is called "impeachment." The jury may think less of the witness's testimony knowing that he's got a criminal record. In many states, the judge caninstruct the jury that they may consider the witness's prior felony conviction in deciding how much credibility to give the witness's testimony.

    If a witness lies and denies the existence of a prior felony conviction, he could be charged with perjury.

Q: What happens when a witness admits to lyingincourt?

  • A:The witness may face perjury charges where he could have to pay a fine, go to jail, or both.

Q: Who decides if a witness is telling the truth?

  • A:In a "bench trial," where there's no jury, the judge decides whether witnesses are believable or not.

    In a jury trial, jurors decide the credibility of witnesses, with guidance from the judge in the form of "instructions" provided after all the evidence has been received. The judge instructs the jurors that they're the sole and exclusive judges of the credibility of each witness who testified. If they believea witnesstestified falsely, they may decide to believe all of that witness's testimony, only a portion of it, or none at all.

    The judge also gives guidance on how jurors should determine the witness's credibility. Jurors are told to carefully judge all of the testimony given, and the circumstances under which each witness has testified. They're advised to consider:

    • Each witness' intelligence, motive to testify, state of mind, and appearance and manner while on the witness stand
    • The witness's ability to observe what he or she was testifying about
    • Whether the witness appears to have an accurate memory or recollection of these matters
    • Any relation a witness may have to either side of a case
    • The manner in which a witness might be affected by a decision one way or another
    • The extent to which, if at all, each witness is either support or contradicted by other evidence in the case

    Each juror should make her own judgment or assessment concerning the believability of a witness and how important the witness's testimony is to the case.

    If the witness is an informant -someone who provides evidence against someone else for money, or to escape punishment for his or her own misdeeds or crimes, or for other personal reason or advantage -the jurors are instructed to examine and weigh their testimony with greater care than the testimony of a witness who doesn't have such motivations.

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