Eyewitness Testimony – The Eyes May Have It

Neil S. Siskind, Esq. asked:

Forty-six years after the assassination of President Kennedy there is still valid dispute not only as to who planned the killing, but also as to who pulled the trigger. This controversy endures despite profound analysis using the most sophisticated investigative techniques, the highest governmental inquiries, and even actual film of the crime scene at the time of the shooting. Even when adding this to the testimony of people who knew Lee Harvey Oswald and understood his psyche, and testimony of the world’s foremost forensic experts, we, as a society, are still not “sure” what really happened. Contrast this with the assassination of President Lincoln where there is no doubt as to who the killer was. John Wilkes Booth shot Abraham Lincoln in front of an audience of people who actually saw the gunshot take place. Like in the Oswald case, there is speculation that Booth was a part of a greater conspiracy, one of southern separatists out to get Lincoln. Yet, with all of the conspiratorial innuendo surrounding both assassinations, we are still absolutely sure Booth pulled the trigger on Lincoln- but question whether Oswald was the actual Kennedy assassin. The difference of the two? Eyewitnesses.

When you are injured, the value of a witness to your injury, or at least a witness to the actions that caused your injury, can be invaluable to your lawsuit. An eyewitness is a person (or in the case of the O.J. Simpson trial, a barking dog) who personally viewed the happening of an injury or who personally viewed some relevant facts related to the injury. Such person may agree to convey what they saw in a deposition or to a finder of fact in court. An eyewitness may be compelled by subpoena to describe in court or in a deposition what they saw. As a general matter, any party to a lawsuit with an eyewitness is working at an advantage to the party without any eyewitnesses of their own when a material fact is in dispute.

There are many possible areas of dispute in a lawsuit:

Sometimes pivotal facts are in dispute. Consider: Two 10 year old kids run up to you and one has a black eye. The one who has a black eye says, “He hit me”, and points to the other boy. The second boy responds, “He hit me first.” This is what a trial is at its essence in many cases- one’s word vs. another’s. How do we determine who hit whom first?

Other times, the facts are stipulated to by the parties, but the reason for an injurious action is in debate. Consider: A young girl says to her mother, “My brother hit me with his bicycle.” The brother replies, “Someone fell down in front of me so I swerved so I wouldn’t run him over and I’m very sorry.” In this case, the sister and brother both agree to the behavior that caused the injury. But we would have to determine fault and whether the boy acted reasonably in swerving out of the way. We must find out the true reason that the boy swerved into his sister. Was he being careless and wild, or was he diverting from greater harm to another?

In both of the above cases, short of doing a forensic analysis and bringing in character witnesses for the parties, both of which are done if necessary, eyewitness testimony would be the most helpful evidence in determining what really happened. If one side had five eyewitnesses whom were deemed reliable and who testified, while the other had no eyewitnesses, then in these cases it would be far easier for finders of fact to determine fault with a level of confidence, even though they personally were not there, and even in the face of other evidence. Would you want to be in a trial where five people claimed to have seen one thing and you claim to have seen another?

If you don’t have a witness to the actual injury, try to find a witness to the positioning of things at the scene or to the actions of the defendant before, during, or after the time of the injury. For example, a man may be throwing rocks off of a bridge into the water to scare up the fish. One rock may hit you in the head as you are fishing down below in a relatively secluded fishing hole. There may not be anyone that sees you get hit, but there may have been other people fishing from atop that bridge. These people may have been witness to the man throwing rocks off the bridge. Or perhaps they saw a man run from the scene saying, “Oops, I think I hit someone.” These are also “eyewitnesses”, even though they may not have actually seen the rock hit your head.

When you are injured, if you are truly hurt, the first thing on your mind should be getting medical assistance. I would say, as an attorney, ideally, that the next thought in your mind should be to take note of who is in your proximity and may have seen the action that caused you harm. This may be a person standing nearby, or a friend you are engaged in an activity with, or a passenger in your car. If you are walking down the street, you should take note of bystanders and shopkeepers who may have seen whatever it is that happened. If you are in sufficient condition you should get names, take note of faces or point potential witnesses out to the police if they are on the scene. Although it is asking a lot for a person who is hurt to think about the legal process, just remember how many times in your life you have accused someone of something, but had no proof, and how hard that was to make your case. It is human nature for people to believe only that which they see with their own eyes or hear with their own ears. Short of that, it takes a lot to gain a juror’s trust to your account of facts, especially considering you are someone they don’t even know. The best way to sway them may be with as many eyewitnesses to back up your story as you can possibly find.

Because there were eyewitnesses to the shooter taking the shot that caused the injury, John Wilkes Booth is the most infamous Presidential assassin in history- while Lee Harvey Oswald may forever be one of history’s most infamous prime suspects.

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