The Three Types of Witnesses in Criminal Trials

March 12, 2022 Criminal Defense

Witnesses are incredibly important in criminal cases. Witness testimony provides essential evidence, expert knowledge on dispositive issues, character assessments, and personal knowledge. There are three types of witnesses that generally are called to testify for the state or the defense. These include lay witnesses, expert witnesses, and character witnesses.

Lay Witnesses

According to Florida Evidence Code 90.701, if a witness is not testifying as an expert, the [lay] witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require special knowledge, skill, experience, or training.

Lay witnesses are the most common type and are usually people who watched the events unfold and can describe what they saw.

Expert Witness

According to Florida Evidence Code 90.702, if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

An expert is generally a specialist in a certain area, and they may testify with respect to their specialty area only. They must be qualified as an expert using the appropriate standard.

Character Witness

Character witnesses generally testify on behalf of the defendant as to their positive character traits and reputation. But character witnesses can also be negative and testify as to the unseemly character of a party to the litigation. Often, character witnesses will be the defendant or victim’s neighbors, family, partners, friends, or religious representatives.

Florida Evidence Code 90.404 discusses the use of character evidence and when it can be used against the accused, victim, and what matters these witnesses can testify to.

Case Illustration

In L.L v. State, the 3rd District court had to distinguish between lay and expert testimony. In that case, a police officer testified that he smelled marijuana coming from the defendant and that the defendant was in possession of a plastic bag that contained marijuana. The defendant objected to the officer’s testimonies about the smell of marijuana and the substance in the bag as it was improper lay opinion and constituted expert opinion testimony. Lay opinion testimony is based on the unspecialized knowledge of an observer, while expert testimony must pass the Daubert standard. The trial court allowed the officer’s testimony. When the defendant appealed, the issue was whether the officer’s testimony was improper lay opinion. The 3rd District held that the officer’s testimony was proper lay witness opinion under Florida Evidence Code 90.701. The court stated that:

In addition to the requirement that lay opinion testimony be based on the personal knowledge and perception of the witness, the Advisory Committee Notes explain that courts should consider the witness’s method of reasoning: “the distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.‘ ” …As one scholar has explained:

[T]he distinction lies in whether the witness’s reasoning process entails a reliable methodology beyond everyday reasoning. A lay witness, however experienced, offers no methodology beyond ordinary reasoning. An expert is equipped to draw more sophisticated, yet still reliable, inferences. The crux of expert testimony is that it presents inferences that are supported through the application of a reliable methodology. Thus, the witness who relies on experience to support an expert opinion cannot simply claim insights arrived at by applying everyday reasoning to that experience base but must explain the methodology employed to reach that opinion. An experienced witness who does not bring such methodology to bear should be subject to the restrictions of the lay opinion rule.

Anne Bowen Poulin, Experience–Based Opinion Testimony: Strengthening the Lay Opinion Rule, 39 Pepp. L.Rev. 551, 578–79 (2012) (emphasis added)).

Tallahassee Criminal Defense Attorney

If you or a loved one has been accused of a crime in Florida, knowing which witnesses will be most beneficial to your case is incredibly important. Contact a knowledgeable Tallahassee criminal defense attorney to consult with and advise you on life-altering decisions. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience litigating in the state of Florida and will ensure your case is handled with care and diligence. Contact us today at (850) 681 – 7777 or send an online message today to discuss your legal matter during an open and free consultation with an attorney in our team.

Written by Gabi D’Esposito

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