After the prosecution and defence opening statements on Monday 29th March 2021, the prosecution began to call evidence in the case.

As we have said before, in any criminal trial, the prosecution bears a burden of proof. They bring a case, such as the one against Derek Chauvin, and must prove it. They try and do this by producing evidence that a defendant is guilty of the offences charged and putting that evidence before the jury.

Evidence can take several forms. For example, the prosecution can – and in this case already have – called live evidence. They have called witnesses to give evidence (in the US, this kind of evidence is called ‘testimony’). So far, we have heard evidence from a number of witnesses who were present at the scene and saw and heard what was happening. These witnesses were bystanders – people who just happened to be there at the time the events were happening and saw and heard what was happening. We may also call them eyewitnesses.

The witnesses come into court and first of all take the oath. This is, essentially, a solemn promise that they will tell the truth about what they saw and heard. They give their evidence (testimony) from the witness box, although in the US this is called the witness stand.

There are, of course, certain rules that apply when witnesses give evidence. For example, the witnesses can generally only give relevant evidence. They can give evidence about what they saw and heard, and possibly about how they were feeling at the time (where that is relevant to some issue in the case). In the case of State v Chauvin, how the bystanders felt might be relevant to at least one of the charges (Third Degree Murder) where, for example, danger to others is a constituent part of the offence.

Witnesses cannot give evidence of their opinion or speculate about things. Cases must be tried on facts, and not opinion or speculation. However, expert witnesses may give their expert opinion on relevant issues. Expert evidence is likely to play a large part in the trial of Derek Chauvin, particularly in relation to the issue of ‘cause of death’ (causation). Both prosecution and defence lawyers in the case made that very clear in their opening statements.

In relation to witness evidence for the prosecution, the witness is questioned by the prosecution counsel. This phase is called ‘examination in chief’ or, in the United States, ‘direct examination’ or just ‘direct’. The general rule here is that the prosecution counsel should not ask leading questions – questions which suggest the answer to the question. This often happens when you ask ‘closed questions’ (questions which are answered yes or no). A question by the prosecution such as ‘Did you see Derek Chauvin pressing his knee harder into George Floyd’s neck?’ would be a leading question and not permitted.

Once the prosecution counsel has finished examination in chief/direct, the defence counsel may then ask questions. This is called cross examination. In cross examination, leading questions are permitted and often the best questions to ask, as the answers will generally be yes or no. The purpose of cross examination (or ‘cross’) is to try to undermine the evidence of the witness in some way and make the jury less willing to rely on it.

Once cross examination is finished, the prosecution may ask further questions in re-examination (or redirect). The purpose of this is for the prosecution to try to restore any credibility and reliability that the witness may have lost in cross-examination.

Live evidence, from witnesses, is not the only evidence that the prosecution may rely on. In this case, for example, there is a lot of evidence in the form of videos, including mobile phone footage, footage from surveillance cameras in and around the area, and ‘bodycam’ footage of police officers who attended the scene. As the trial progresses, there may be other kinds of evidence which is produced. We will deal with that if and when it happens.

In relation to the video evidence, it is produced to the jury as ‘exhibits’ and each exhibit is given a unique number. Other evidence can be produced in the form of exhibits. For example, in this case exhibit 1 is a plan of the scene of the incident at the intersection (crossroads) of 38th and Chicago in South Minneapolis. This exhibit allows witnesses to show the jury where they were at any point in time, and where they say things happened.

Comprehension Exercise

1. Can you define what the ‘burden of proof’ is?

2. What are eyewitnesses?

3. When a witness is called into the witness box to give evidence (testimony), what must they do before they begin to give their evidence?

4. What kind of questions must the prosecution generally not ask to the witnesses it calls to give evidence in support of its case?

5. Can you give one or two of the purposes and aims of cross-examination?

Answer Key

1. The burden of proof is the obligation or duty a party to a trial has to prove or disprove a fact, or – in a criminal trial – the guilt of the defendant.

2. A person who has seen something happen and can give a first-hand description of it.

3. They must take an oath, which is a solemn promise to tell the truth about what they saw or heard.

4. Leading questions.

5. To try to undermine the credibility or reliability of a witness who is called by the other party and to cause the jury to give their evidence less importance.

© Cambridge Legal English Academy 2021

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