Criminal case preparation – defence witnesses

This is our second factsheet dealing with the preparation of your defence case, focusing on defence witnesses. 

What is a defence witness?

Someone who gives evidence on your behalf.

What are the different types of witnesses?

There are four main types of defence witnesses:

  1. Witness of fact
  2. Alibi witness
  3. Character witness
  4. Expert witness

What is a witness of fact?

Someone who can give evidence about the alleged offence and what happened.

How is their evidence prepared?

If you have potential witnesses in your case it is essential that you provide your solicitor with their details as soon as possible after you have pleaded not guilty. Your solicitor will then contact the witness/s and make an appointment to take a statement from them. You will not be present at that meeting as their evidence should be independent from you. Following that meeting your solicitor will then prepare a formal statement and send it to the witness for them to approve and sign. If you don’t have the contact details of that witness you should provide your solicitor with as much information as you can about them so that your solicitor can try to trace the witness on your behalf.

Will I see a copy of the witness’s statement?

Yes. Once the statement has been signed and approved by the witness your solicitor will send you a copy for you to read. It is your case and you are entitled to see all the evidence within it.

Will the statement be served on the prosecution?

It is unlikely. There is no requirement for you to serve your witness’s statement on the prosecution or the court (the exception to this is expert evidence – see below). However there may be cases where your solicitor advises that it is in your best interests to serve the statement for example, it may assist in representations to the prosecution that they can’t prove the case against you.

Is this evidence likely to be agreed by the prosecution in advance of my trial?

Again this is unlikely. If you are calling  a witness of fact the chances are it is to dispute an area of the prosecution’s case. For this reason it is unlikely that the prosecution will agree your witnesses evidence. This means in most cases witnesses of fact are required to come to court to give live evidence on your behalf.

Do I need to tell the court and the prosecution which defence witnesses I am intending to call at my trial?

Yes. This is very important. You are required to notify the court and the prosecution of the details of any witnesses you intend to call at your trial. In this notice you must give the witnesses name, date of birth and address. If you don’t have these details you must provide as much detail as you can about the witness to help identify them.

In practical terms assuming you are represented you must give these details to your solicitor who will prepare and serve the notice on your behalf.

When do I have to do this?

In the Magistrates’ Court within fourteen days of the date the prosecution serve initial disclosure (we will discuss initial disclosure in our next fact-sheet) and in the Crown Court, within twenty-eight days of the date of service of initial disclosure.

What happens if I don’t notify the court and prosecution about my witnesses details?

The short answer is that you may not be allowed to call them to give evidence at your trial.

What is an alibi witness?

Someone who can give evidence about where you were at the time the alleged offence was committed.

Is alibi evidence important?

Yes if it shows that:

  • By reason of your presence at a particular place, or
  • In a particular area at a particular time

It is unlikely that you were where the prosecution say you were at the time the alleged offence was committed.

Do I have to provide details of my alibi witness?

Yes.

What is a character witness?

Character witnesses are just that. They are people who can tell the court about you and the positive sides of your character. Beware however that in order to give effective character evidence they must know what is you have been charged with.

If you have no cautions or convictions you will be entitled to what is called a good character direction which means that the Magistrates (Jury if at the Crown Court) will be directed to take into account your good character when deciding how likely is it that you committed the alleged offence(s) and when assessing your credibility; i.e your truthfulness and reliability as a witness.

If you are of good character it is generally a good idea to call character witnesses to speak on your behalf as they can give evidence of your good character over and above the simple fact that you do not have any previous convictions for example, whether you are honest (and give real life examples of situations where they have known you to be honest and trustworthy) or whether you are violent (and for example give evidence of situations in which they have found you to be the pacifier/peacemaker) etc.

If you have any cautions or convictions, you can call character witnesses but a consequence of doing this is that the court may then be informed of your criminal record. Despite this it may still be advisable if your criminal record is for offence(s) of an entirely dissimilar nature to the current charge(s) for example, you were convicted of drink driving eight years ago and are now facing a trial for common assault. This is something you should always take advice on from your solicitor.

Generally speaking, if you have previous cautions or convictions for similar matters to the current charge(s) and the prosecution have not successfully applied to put these into evidence, it is not normally advisable to raise your character as an issue as to do so could mean the court hearing about your criminal record. Again this is something you should expect your solicitor to advise you about.

Do I have to tell the court and the prosecution about my character witness/s?

If you intend to call them at trial then yes as described above.

Do I have to serve my character witnesses statement in advance of my trial?

No however there are some cases where it is in your best interest to do so. Often character evidence can be agreed by the prosecution in advance of your trial which will save your witness the trouble and inconvenience of attending court to give evidence on your behalf. Whether such evidence can be agreed depends largely on how contentious it is. Your solicitor should advise you about whether you should serve this evidence or not.

What is an expert witness?

A person who has specialist knowledge or experience in a field over and above that expected of an ordinary lay person. The fundamental difference between an expert witness and a witness of fact is that the expert is allowed to give opinion evidence based on their expertise and can give evidence about the alleged offence or an aspect of it without having witnessed it personally. For example, a witness of fact can say that he could smell alcohol on your breath and that you appeared unsteady on your feet but cannot say whether or not you were drunk. An expert could analyse your breath/alcohol level and give an expert opinion on the level of your drunkenness and the effect that this was likely to have had on you.

When would I need an expert?

There may be an issue or issues in your case which needs to be addressed and commented on by an expert. For example:

  • You have been charged with drink driving and your instructions are that you had drunk the excess alcohol after it is alleged you were driving. An expert would therefore be needed to examine what your reading would have been prior to the post driving alcohol consumption, i.e. would you still have been over the limit?
  • You have been charged with an assault and although you do not dispute that the victim received their injuries you dispute how they were caused.
  • You have been charged with fraud and a forensic accountant is required to examine all the financial documents served.

 How is this evidence obtained?

You solicitor will advise you whether or not an expert is needed in your case and will find the appropriate expert for you.

If you are legally aided your solicitor will first have to obtain a quotation from the expert and then apply to the Legal Services Commission for authority to incur the cost of that expert; they are not cheap and getting permission to spend the money from the legal services commission can be a lengthy process. Assuming the legal services commission approve the expense, your solicitor will then proceed to instruct the expert on your behalf. If you are paying privately, your solicitor will inform you of the quotation(s) and if you agree to with it you will need to provide your solicitor with that expert’s fees on account.

After the expert has prepared their report, it will be sent to your solicitor who will then send it to you and advise you whether it is helpful to your case and whether you should rely on it at your trial.

Do I have to serve my expert’s report on the court and prosecution?

Yes if you are intending to rely on it.

 

 

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