225.3Examination of Witnesses
- Although most of these issues are addressed separately in other entries, this list is intended as a quick-reference guide to alert prosecutors to certain types of witnesses who may present unique challenges in preparation and presentation.
Testimony from Accomplices, Plea Bargains, and Grants of Immunity
The prosecutor’s most important decision in using an accomplice witness is how to obtain his or her testimony. The prosecutor’s decision on this makes a significant difference in what the state gets and how it will be viewed by the jury. The plea offer or immunity grant cannot be too generous or it risks losing credibility with the jury, but it must be generous enough that the witness recognizes it’s the smarter decision to make. Obviously freedom from custody is the prosecutor’s most substantial bargaining tool. The prosecutor has the power to grant the witness immunity from his or her crimes, dismiss or reduce the charges, or recommend sentence concessions. For more considerations about this topic, see the related entries on Plea Agreements: Negotiation and Terms and Plea Agreements: Grant of Immunity.
The most effective procedure for securing the testimony of an accomplice is to allow the accomplice to plead guilty to some charges (e.g., a lesser offense of the original crime), but continue prayer for judgment from term to term until after the trial for which the witness has promised to provide truthful testimony. This is done by a negotiated plea, which is accepted by the court. It is generally better if the jury realizes that the witness remains subject to a substantial punishment, which has not yet been imposed. It is also helpful if the plea agreement or grant of immunity itself contains the full terms and conditions of the agreement, as well as the reason for the agreement. The prosecutor should have a copy of the plea agreement in court for the witness to read aloud during trial, if necessary. The agreement should make it clear what can happen if the witness’s testimony is not truthful.
The existence of any “deal” makes the testimony from these witnesses inherently open to suspicion and vulnerable to cross-examination. The witness is an interested party who benefits from his or her testimony and, therefore, is subject to vigorous impeachment as to bias. The best way for the prosecutor to combat this built-in prejudice is to corroborate what the witness says by testimony from other witnesses, circumstantial evidence, and physical evidence. The prosecutor should draw the jury’s attention to that corroboration and consistency in closing arguments. The state must show that a witness’s statement concerning his or her participation was completely truthful (assuming it was), and ideally that it was provided to officers in an effort to cooperate early on, even before a deal was struck or the witness had access to the advice of counsel.
Proper preparation of an accomplice witness is essential, and it is not always done adequately. Such witnesses are often in jail, and may have an attorney who wants to be present for any meetings between the witness and the prosecutor. The logistics of communication and setting up such a meeting when the witness is in custody can be burdensome. In some cases, the prosecutor may not even want to associate with or be physically near the witness. As a result, some prosecutors tend to rely on law enforcement information and just hope or assume that the witness will testify consistently with the statement given to law enforcement officers (which may be incomplete or even incorrect). These are all common mistakes, and can be severely damaging to the state’s case.
Don’t prep alone
Whenever a prosecutor meets with an accomplice or testifying codefendant to prepare for trial, it is essential that a legal assistant, investigator, or officer also be present for the meeting. If the witness says one thing at the meeting ("Yes, I saw the defendant do it") but then says something else on the stand ("well, I mean, I think he did it, but didn't actually see him..."), the prosecutor needs to have someone else he or she can call to the stand to impeach the witness on his prior inconsistent statement.
- Prepared to acknowledge that his or her acts were wrong, were criminal, and perhaps even that the witness is sorry for them (if true). Nothing hurts the prosecution more than a witness who tries to rationalize or justify his or her crimes. The jury will struggle to convict a defendant based on testimony by a witness who is not truthful about the witness’s own participation in the crimes. The witness must fully admit his or her culpability.
- Prepared to honestly answer all questions about immunity or “deals.” The witness must understand every aspect of the agreement, since the motive for testifying will hinge on what the witness expects to receive as a result of cooperating with the state. The witness must be ready to admit that he or she entered into the agreement in the hope of spending less time in jail, and not merely out of a desire to be a good citizen.
- Ready to handle a hostile attorney who asks compound and confusing questions that slant or misstate the facts. The witness needs to be ready to be humble and, if necessary, turn the other cheek. The prosecutor should make as few objections as possible during the cross-examination. It must not seem like the prosecutor is unduly trying to protect the witness. The jury must view the accomplice as a witness whose testimony is sufficiently truthful to withstand the test of strong cross-examination without outside assistance.
And the prosecutor must:
- Emphasize the witness’s strong motive to tell the truth. The prosecutor should point out that the plea agreement requires the witness to be truthful, so any lies would destroy the deal and forfeit any benefit the witness would otherwise receive.
- Always remain conscious of his or her body language, tone of voice, and demeanor while the witness is testifying, and think about the message that any reactions may send to the jury. The prosecutor doesn’t have to “like” the witness, and neither do the jurors – they only have to believe the witness’s testimony is truthful. If the witness has just admitted to a savage act of cruelty which the jury is likely to find abhorrent, the prosecutor should remind them that the relevance of this testimony lies in how it relates to the defendant’s guilt. (Q: “And where was the defendant during this time?” A: “He was standing right there holding the gun while I did it…”)
When it is essential to the probative value of an item of real evidence, evidence must be introduced that is sufficient to support a finding not only that the object offered is the object involved, but also that the object is in “substantially the same condition” that it was at the time of the crime. If a sample is offered (for example, a small sample taken for testing from a larger quantity of suspected drugs), it is also necessary to establish that the sample is representative of the mass. This is a relatively simple concept, but it can be complex in practice, and usually must be done through the testimony of witnesses.
When an item is unique and readily identifiable, it is generally sufficient for the witness to identify it, explain how he or she is able to do so, and confirm that it is in substantially the same condition as it was at the relevant time. For example, if the witness is able to immediately recognize a cell phone as the item which the defendant stole based solely on the item’s appearance, like its distinctive cover, crack in the screen, wear patterns on the back, and so on, then no chain of custody testimony is necessary because the witness can uniquely identify the object on sight.
But when an item is not unique or readily identifiable (such as drugs), the object must be authenticated by a chain of custody. This testimony usually needs to establish both: (i) continuous possession by each individual having possession of the item; and (ii) no change of condition. Witnesses need to be familiar with the legal requirements for chain of custody and be able to identify the item and their part of the chain. To establish a chain of custody in drug cases without calling unnecessary witnesses, see G.S. 90-95(g1). For similar statutes involving chain of custody of blood or urine in DWI prosecutions see G.S. 20-139.1(c3), and for evidence subject to forensic analysis, see G.S. 8-58.20(g). Chain of custody is also addressed in the related entries on proposed voir dire questions for expert witnesses, such as the entry on Expert Witnesses: Suggested Questions for Forensic Drug Analyst.
Child witnesses (especially child victims) can be the most challenging witnesses to prepare and examine. Although most children have an innate tendency to be truthful with adults, they may also have more difficulty remembering events clearly, and they may feel pressured to alter or deny a prior statement if they believe that either they or someone else (such as an abusive parent) might now “get in trouble” for what happened. Moreover, the jury is often very uncomfortable hearing children talk about being victimized or witnessing something criminal, and the prosecutor may feel pressured to ‘help’ the child by ending an unpleasant direct examination as quickly as possible. Of course the child’s direct examination should not go on any longer than necessary, but the prosecutor must also remember the importance of the prosecution itself, and make sure that all relevant testimony from the child is elicited as efficiently and compassionately as the facts allow.
For these reasons, it is extremely important to spend adequate time preparing the child to testify, as described in Section D, “Witness Preparation,” in the related entry on Examination of Witness: Direct Examination Preparation. In some cases, it may be possible to have the child testify using remote testimony to insulate the child from unwarranted intimidation, distress, or embarrassment on the stand. For more information, see Section E, “Remote Testimony,” in the related entry on Examination of Witnesses: Overview, Competency, and Qualifications. See also Jessica Smith, “Evidence Issues in Criminal Cases Involving Child Victims and Child Witnesses,” Admin. of Justice Bulletin 2008/07 (UNC School of Government Dec. 2008).
Rape and Sex Offense Victims
In addition to all the other challenges that one would expect to arise from asking a victim to testify (and then face aggressive cross-examination) about such a traumatizing event, prosecutors should also prepare the witness early on for the possibility that, in some circumstances, the defense may try to introduce other evidence about the victim’s past sexual conduct. Such evidence is substantially restricted by Rule 412, which strictly limits its admissibility and requires an in camera review by the court, but the prosecutor needs to be well-versed in these rules to ensure the victim’s privacy and dignity is fully protected. For more information, see the related Evidence entry on Victim's Past Sexual Behavior: Rule 412. For information about closing the courtroom during the victim’s testimony, see Section B, “Closing the Courtroom,” in the related Trial entry on Duties/Conduct of Trial Judge: Control of Courtroom and Proceedings.
Expert Witnesses Stipulations
In the vast majority of cases, the prosecutor should not agree to stipulate to the state’s expert witness’s qualifications, examination procedures, conclusions, or any other portions of the expert’s testimony. The jury is usually impressed with this testimony, and enjoys getting an education on a complex subject they likely do not know about yet. In addition to being interesting or entertaining, the expert may also be the state’s most credible and important witness (e.g., fingerprints or DNA evidence found at the scene of the crime). Hearing about the expert’s qualifications, training, and educational history adds appropriate weight and significance to the ultimate opinion reached by the expert. For more discussion, see the related entry on Expert Testimony: Basic Guidelines. See also G.S. 8C-1, Rules 702-706.
Eyewitness Identification Testimony
The prosecutor should never ask a witness to identify the defendant without being sure that the witness can indeed make that identification. If an eyewitness identification is important to the state’s case, then the prosecutor should prepare the witness to make an accurate and compelling identification in-court. However, the prosecutor must prepare the witness to do so without prejudicing the desired in-court identification. Careless preparation (such as showing the witness incriminating photos during a prep session) may taint or potentially even bar the admissibility of the in-court identification.
If the witness personally knows the defendant, had an opportunity to observe the defendant during the commission of the offense or as part of the resulting investigation, or previously identified the defendant during a valid line-up procedure, then performing an in-court identification should be a relatively simple matter. But if the defendant successfully challenges the prior line-up (for example, because defendant was denied counsel, or because the line-up procedure was flawed or unduly suggestive) then the state will have to show by clear and convincing evidence that the witness’s ability to perform an in-court identification of the defendant has an independent origin, arising out of the witness’s own observations of the defendant, rather than as a result of the improper line-up. See Neil v. Biggers, 409 U.S. 188 (1972); United States v. Wade, 388 U.S. 218 (1967); State v. Malone, 373 N.C. 134 (2019); State v. Hunt, 339 N.C. 622 (1995); State v. Oliver, 302 N.C. 28 (1981); State v. Capps, 114 N.C. App. 156 (1994).
Hypnosis and Hypnotically-Refreshed Witness
Although this issue rarely comes up in practice, prosecutors should be aware that hypnotically-refreshed testimony is inadmissible under State v. Peoples, 311 N.C. 515 (1984) and State v. Flack, 312 N.C. 448 (1984). However, a defendant’s hypnotically-refreshed testimony may be admissible under the United States Supreme Court decision in Rock v. Arkansas, 483 U.S. 44 (1987) (Arkansas’ per se rule excluding all hypnotically-refreshed testimony infringed impermissibly on criminal defendant’s right to testify on her own behalf). A witness who has been hypnotized may testify about facts he or she related before the hypnotic session, but the witness may not testify to any fact not related before that session. See State v. Hall, 134 N.C. App. 417 (1999). For more information, see the related entry on Expert Testimony: Repressed Memories and Hypnosis.
As a result of State v. Grier, 307 N.C. 628 (1983), a polygraph can only be used as an investigative tool, and its results are not admissible (even by stipulation) in our courts. See also United States v. Scheffer, 523 U.S. 303 (1998) (polygraph evidence made inadmissible by court rule did not unconstitutionally abridge defendant’s right to present defense). The witness cannot be examined about the test while testifying, but any incriminating statements which the witness made during or after the test are admissible. State v. Harris, 315 N.C. 556 (1986); State v. Payne, 327 N.C. 194 (1990). But see State v. Willis, 109 N.C. App. 184 (1993) (polygraph examiner’s testimony that defendant was lying was inadmissible and prejudicial error even though polygraph testing was never mentioned). For more information, see the related entry on Expert Testimony: Polygraphs, Witness Credibility, and Plethysmography.