Criminal Defense Witnesses and the Prosecution’s Burden of Proof

Most of our readers understand that the burden of proof is always on the prosecution to establish guilt beyond a reasonable doubt. While this evidentiary standard is much higher than the civil standard of “by the preponderance of the evidence” there are various ways the prosecution can meet it. In most criminal cases the prosecution will present an eye witness to testify about his observation of the act in question. This is known as direct evidence but a witness can also testify about circumstantial evidence which is the evidence left behind following a crime or an alleged crime.

Since the burden is on the prosecution they are obligated to present at least one witness to make their case but they will often present several during a judge or jury trial. For example, in a drug or gun case the prosecution will present a witness who may testify as “the eyes”. This will be the police officer who observed the alleged transaction or the officer who actually saw the accused with the gun, drugs, narcotics, or other contraband. In a drug or gun case, the prosecution may also present the arresting officer to testify as to the recovery. This witness is also important during pre-trial motions such as a motion to suppress evidence.

In cases of violence, the victim will almost always have to testify assuming that they are be able to do so (i.e. murder cases). There are obviously various degrees of violence ranging from simple assault (misdemeanor) to aggravated assault (felony) to homicides (felony) but a victim’s testimony alone sometimes is enough to establish the prosecution’s burden of proof. With that said, it’s important to consider defense witnesses whenever possible. While a defense isn’t obligated to present, a strategy based exclusively on cross examining the prosecution witnesses isn’t always the best course of action.

The credibility of your defense witness is critical and it’s important that your criminal defense attorney understand the concept of impeachment. Defense witnesses are extremely helpful especially in cases involving drugs and guns. In addition to fact witnesses, your defense may also want to present a character witness to testify as to your character. Pennsylvania criminal jury instructions are very specific regarding the issue of character testimony. A person’s good character alone is enough to establish reasonable doubt. In Pennsylvania, while a character witness isn’t able to give opinion testimony (I think the accused is a good person who would not never do something like this) he or she is able to testify as to your reputation in the community for being a peaceful, honest, and a law abiding citizen. If your criminal defense attorney is going to present a witness with regards to character in your drug, gun, or even your DUI case it is important that he presents a witness who is familiar with you because the prosecution will more than likely attack this area of this person’s testimony.

With regards to the witness’s testimony, remember that a witness can only testify as to their observation and not to what was told to them. I encourage you to read my article on hearsay evidence to understand more about this concept. Finding defense witnesses is sometimes a difficult task as people often don’t want to be caught up in the criminal trial but your attorney must stress that they are looking for testimony as to accused position in relation to the illegal item (drug or gun) and not necessarily proof of your innocence. A good criminal defense focuses on holes in the prosecution’s case and making a judge or jury step back and think. For more information on criminal defense strategies in Pennsylvania I encourage you to read my books, my articles and watch my videos.