This brochure is designed to give a witness or a defendant an opportunity to avoid some of the pitfalls that come with testifying in court. Because my office specializes in criminal cases, and there are no depositions in criminal cases, it does not deal with how to testify at a deposition.
Clients in criminal cases are defendants, and there are special considerations for criminal defendants. Before they testify, they should spend a great deal of time with their attorney in preparation for this, the single most important contribution they have in deciding the outcome of their case. But they, too, can benefit from reading this brochure, which is designed to help them through a very difficult and demanding procedure. As difficult and demanding as it may be, it could also be the single most important factor in causing a jury to find you not guilty.
There are four basic concepts that I tell all of my witnesses. They are as follows:
Listen to the question.
Consider the answer.
Answer the question and only the question.
Tell the absolute truth.
LISTEN TO THE QUESTION.
This seems pretty obvious, doesn't it? Well, you would be surprised how many times we find the judge interrupting witnesses only to tell them exactly that. Do not anticipate what the question is going to be. Most witnesses are somewhat nervous. This makes them tend to anticipate the question. Take the time to listen to the entire question. Sometimes lawyers have a tendency to use legal language far different than marketing, or words which have special meanings in the law, especially at the end of a question. Wait for the lawyer to ask the entire question.
CONSIDER (THINK ABOUT) THE ANSWER.
Don't rush into answering the question. First of all, the court reporter cannot get an accurate record when two people are speaking at the same time. So the judge may interrupt your testimony to tell you to slow down, or to wait for the questioner to finish his question before you begin you answer. Likewise, the questioner is required to wait for you to finish your answer before asking another question. Secondly, waiting for the question to be asked will also allow the other attorney to object if necessary. Never try to squeeze in an answer because you are anticipating an unwelcome objection. This is pointless. If the objection is sustained, you will be told not to answer the question. If you have already squeezed it in, the judge will reprimand you, strike your answer from the record, and instruct the jury to ignore what you just said. This usually works against the very party whom it is obvious you were trying to help.
Lastly, and most importantly, pausing for a second or two before answering will give you the time to organize your thoughts, consider your answer, and to respond accurately. You will thereby be less likely to make a critical mistake. No one is going to question why you take a second before you answer. Jurors appreciate it, and the lawyers especially appreciate it, because it gives us the opportunity to make note of what you said, and allows us to prepare follow-up questions.
ANSWER THE QUESTION AND ONLY THE QUESTION.
This, too, seems obvious, but one would be surprised to know that this is the area where most witnesses make serious mistakes. In everyday conversations, we do not communicate in question and answer format. For example, someone might ask you, "Do you know what time it is?" Usually, they only want the time, not whether or not you know it. If you were to respond, "It's three o'clock," the person would be satisfied, but in court, your response would be non-responsive. That example may seem extreme, but if you will use it as a guide, it will help you to answer only the question, and your testimony will run smoother.
Many witnesses mistakenly think that they have to carry the entire case themselves. As stated, if the question calls for a yes or no answer, and you can do so, answer yes or no. Don't worry that your one-word answer does not make the point that you were trying to make. Wit-nesses don't prove cases, lawyers do. Witnesses don't even have a right to know what point a lawyer is trying to make. Many times I'll question a witness, and a hostile witness will respond, "I don't know what you're driving at." That's fine with me. He doesn't get to know what I'm driving at. It's my job to ask the questions, and it's his job to answer it truthfully, regardless of how it may affect his position.
Do not be concerned if the right question is not asked, and you start to feel that the truth will not come out. Both attorneys have the right to ask an almost unlimited number of follow-up questions. There's an old anecdote about a witness in a "mayhem" case, alleging that one man bit another man's ear off. The exchange supposedly went a little something like this:
Now sir, you didn't actually see him bite the man's ear off, did you?
Well, I'm not sure how to answer that, because I --
(Sternly) Sir, the question calls for a yes or no answer. Yes or no, sir, did you or did you not see him bite the man's ear off?
No, sir. But I --
No further questions, Your Honor.
The prosecutor sits down, confident that he has successfully driven home a critical point. The witness, on the other hand, is frustrated because he feels as if his answer was misleading, and he thinks that the questioning is over. It's not. There is re-direct examination, then re-cross, then further re-direct, then further re-cross, and on and on until the lawyers are through.
You just testified on cross-examination that you didn't actually see the man bite his ear off, right?
Well, if that's the case, how is it that you can say that you know that he bit the other man's ear off?
Because I saw him spit it out.
See? As long as the lawyer on your side has done his homework and knows the case, you'll always be able to disclose the critical information. You should not be frustrated if a lawyer (especially the opponent's lawyer) does not ask the "right" question. That's his plan. But the other lawyer (your ally) has his job, too. He knows what information will help his case, and he will find a way to elicit the testimony from you.
DO NOT VOLUNTEER INFORMATION
Answer only the question that is asked. This is a common problem that criminal defendants run into. Let's say that a defendant is charged with getting drunk and punching his neighbor in a fit of rage. The defendant denies that this happened. In fact, he wants the jury to believe that he was perfectly sober and in control of his temper at all times, and that he hit no one. He does have a criminal history, however. He has three drunk driving convictions in the past three years. Fortunately for the defense, the judge has ruled that the drunk driving convictions are not relevant at this trial, and the jury has no right to hear about them. If the jury were to hear of them, it would likely prejudice their decision against the defendant.
So, the defendant is asked by the DA, "Isn't it true that you were drunk that day?" In-stead of answering the question -- and only the question (as he was advised by his attorney) and responding, "No, sir, it is not true", the defendant tries to win his case all by himself. He goes a step further. He volunteers unnecessary information and says, "No, sir, I don't drink."
All of a sudden, with one simple statement which was totally unnecessary and counter-productive, the hard work the defense attorney did in trying to exclude the damaging evidence is all for naught. The drunk driving convictions just became relevant for impeachment purposes, just because the defendant decided to answer a question which he had not been asked. The DA then had the right to ask about the three drunk driving convictions because it became relevant to show that the defendant is not worthy of belief.
"He said he doesn't drink" argues the prosecutor, "And yet we know that he has been convicted of endangering the lives of innocent citizens through the mixing of alcohol and driving, proof positive that the defendant is a liar and a drunkard and a perjurer."
Don't try to win the case all by yourself. Answer the question and only the question.
TELL THE ABSOLUTE TRUTH
Tell the truth. Sometimes it may be in conflict with other testimony or evidence, but juries understand that two people witnessing the same incident often remember it differently. Discrepancies if witnesses testimony are not uncommon. If all of the defense witnesses tell the exact same story, it can look contrived and suspicious. You cannot get in trouble if you simply tell the truth as you know it.
A young man was charged with first degree murder. His mother had testified on direct examination that he was with her on the afternoon he was supposed to have been miles away shooting and killing the decedent. The DA cross examines her, "Ma'am, do you love your son?" "Yes, sir." The DA asks, "You do not want anything bad to happen to him, do you?" "No, sir", the mother replies. DA then asks, almost routinely, "Would you ever lie, let's say, to protect your son from going to the gas chamber?" He is shocked by the answer. "No, sir", she replies, "I am under oath. I would not commit perjury under any circumstances"
Well, of course the jury didn't believe her. Not because her son's alibi evidence didn't make sense to them. It did. But because they did not believe his mother's testimony. They felt that any mother who loved her son would certainly lie to keep him from being sent to the gas chamber. If she had told the truth, and admitted that she would certainly be tempted to commit perjury -- even at the risk of being sent to prison herself -- if she were asked a question which would hurt her son's chances, the jury would have believed her alibi testimony.
So the moral to the story is that you cannot get in trouble unnecessarily if you just tell the truth. If telling the truth would convict you, your lawyer has the right to keep you off the witness stand. The prosecution cannot call you. The only way you can wind up on the witness stand is if your own lawyer calls you.
DON'T SPAR, AND DON'T TAKE SIDES
Resist the temptation to spar with the opposing attorney. In fact, treat each of the attorneys the exact same. If you are polite to both, the jury will respect that, and they will reward you with credibility points. If you have the opportunity to be nice to the opposing attorney, do so. For example, let's say that an attorney makes a stupid mistake and uses your name to describe someone else ("Mr. Jones, did you see Mr. Jones there?"). Well, if this is your side's attorney who made the mistake, you might say, "You meant, 'Did I see Mr. Smith there', didn't you? Yes, sir, I saw Mr. Smith there."
On the other hand, if it was the obnoxious, arrogant opposing attorney who had made that mistake, and he has been getting under your skin all afternoon with his annoying behavior and whiney voice, you'll want to respond, "Well, that question doesn't make any sense, does it? I am Mr. Jones, remember? Of course I saw myself there!"
Don't do it. Be polite. Respond to his mistake the exact same way you would respond to your own attorney's mistake. Trust me. The jury will respect that. Don't forget, they, too, know how obnoxious he has been throughout the trial. It's counter-productive to be a smart-ass. A witness who is polite and respectful will be more likely to be respected by the jury.
DIRECT YOUR ANSWERS TO THE ATTORNEY
I instruct my witnesses to be polite and direct their answers to the attorney who is asking the questions. I do not instruct them to face and direct their answers to the jury. This is where I differ from many capable trial attorneys who instruct their witnesses to talk directly to the jury. Their goal is to try to develop an intimacy between the witness and the jury. I personally think that this method can be seen as disingenuous and, consequently, counter-productive.
There are exceptions, such as when the question asks you to do so ("Please explain to the jury where you were …"). In that case, you should turn to the jury and direct your answer to them. And sometimes, for dramatic purposes, if you are answering the most important question of the trial, you may want to turn and face the jury as you testify, "No, sir, I did not strike my wife."
But my experience is that juries see it as impolite when witnesses constantly turn away from the attorney whose questions they are answering, and direct their responses to them. Jurors get the feeling that they are being played up to, or manipulated. They know that the proper objective of a witness is to answer questions, and to tell the truth no matter where it leads. When they see a witness trying too hard to get them to like them, they sense that the witness has an agenda, that they will do anything to make the jury believe them, and that their answers are likely geared toward that result, not to tell the truth. And they know that that's not the proper duty of a witness.
GUESSES AND ESTIMATES
Don't guess at any answers. Guesses are inherently unreliable, and are therefore inadmissible in court. However, you may be asked to give an estimate, and estimates are relied upon in courts all the time. The difference between a guess and an estimate can be demonstrated as follows: If someone asks you the size of the courtroom in which you are testifying, because you have seen it, you can give an estimate of its size. But if you were asked the size of the judge's chambers, and you had never been there, nor do you know his acquaintances, any answer you would give would constitute a guess. You may be asked to give your best estimate. If you are not guessing, you may do so. On the other hand, you may also respond by stating that you do not believe that your estimate would be reliable, if such is the case.
If you are a defendant, you will undoubtedly sit beside your lawyer at counsel table while testimony is being taken in your case. Be sure not to react with body language to negative testimony. It gives everyone in court the opportunity to know what you are thinking. If you sit quietly during part of the prosecution's case, and then react perceptibly when you hear certain damaging testimony, it tips off the jury that the only testimony that's false is the part when you reacted, and the rest of the evidence is true. If you sit attentively, keep a poker face, avoid visibly reacting to negative testimony, you will preclude the possibility of everyone in court knowing your innermost thoughts, and that's critical.
Other dangerous body language to avoid: 1. Try to avoid folding your arms across your chest. It makes you look defensive, as if you do not want to hear the question. 2. Try also to keep you hands away from your mouth, as this, too, makes you look as if you are lying. 3. Do not mumble. Speak up and with confidence. Use the micro, and sit up straight. 4. Don't get up and leave just because you think the questioning has stopped. Remain seated until you are told by the judge that you are excused.
"TO THE BEST OF MY RECOLLECTION"
Avoid the tendency to say things like, "To the best of my knowledge," or "To the best of my recollection." You have already been sworn to testify truthfully, and that means to the best of your knowledge and recollection. It is therefore assumed that every answer you give is to the best of your knowledge and recollection. To say it then, especially in response to a particular question, makes it look like you are hedging, or worse yet, fabricating. It suggests that you are worried about being proven wrong at some point. So avoid saying it. It sounds deceptive.
Do not answer any question which you do not understand. If you do not understand a question, say so. It is the lawyer's responsibility ask questions that you can understand.
I don't know" and "I don't remember" are perfectly valid responses if they are truthful.
Do not look to your own attorney for signals or clues when you are being cross-examined. The jury will pick up on it, and it will affect their decision making.
Try not to talk to your lawyer while a witness is testifying. While your input on the proceedings is always important, your lawyer needs to give his undivided attention to the current testimony, to make split-second decisions concerning objections, to prepare his examination of the witness, etc. He cannot divide his attention between the witness' testimony and your comments like he has the all important herpes vaccinations cure, even if your are only whispering. So you should write down your comments, and make sure to remind your attorney to check them out before he finishes his examination of the witness.
If you need to, you may ask the judge's permission to consult with your lawyer before you answer a question. Don't do this too often, and don't automatically assume that you will be afforded that opportunity. But if you are seriously confused and don't want to say the wrong thing, you have the right to ask to consult with your attorney.
If any lawyer has spoken with you about your testimony and you are asked about it, tell the absolute truth. It is perfectly allowable for a lawyer or an investigator to discuss the facts of the case with you, and to give you pointers on how to testify effectively.
Most of the time, the court will order that all witnesses in the case be excluded from the courtroom while other witnesses testify. This is to prevent witnesses from allowing other evidence they hear to color or taint their testimony. If there is such an exclusion order, you must wait patiently for your turn to testify, you may not discuss the case with any other witnesses.