When you Decide to Testify or are Called to the Stand as a Witness
Most Important, always tell the truth. This is the most important advice any witness should remember. If you are called to testify as a witness in a criminal case before you begin your direct testimony from the attorney that calls you to the stand you will be first required to take an oath or affirmation to tell the truth. When you take the oath or affirmation, say "I do", and look the jury or the judge straight in the eye. When you are asked a question, every true fact should be readily admitted. Do not guess, and if you are not sure of the answer say you are not sure. Testimony before a judge or jury is no time to wing your answers. Never pause before you answer to decide whether your answer will help or hurt either side. Just answer the questions to the best of your memory. If you do not remember, say you do not remember, and if you do not understand the question do not be afraid to say that you do not understand the question.
Be prepared prior to your testimony. Review any statements or reports that you may have made regarding the incident. You should attempt to refresh your recollection regarding times, dates and time periods prior to your testimony. Before you testify, think about the incident and what happened, so that you can recall the details accurately when you are asked in court. Do not simply agree with the questions posed of the attorney, either on direct or cross, with a simple correct, unless it is the right response to say correct. If the question is about distances or time, and if your answer is only an estimate, be sure you say it is only an estimate. Beware of suggestions by attorneys as to distances or times when you do not recall the actual time or distance. Do not readily agree with their estimate unless you independently arrive at the same estimate.
Speak in your own words. Use simple words and sentences. Don't attempt to memorize what you are going to say, or use words to impress the judge or jury. Speaking plainly and simply will go a long way and conveying to the judge or jury what you know, and don’t know about a particular case. If you attempt to give long winded answers you might give the impression that your testimony is d rehearsed and accordingly, your testimony will be unconvincing. Rather, just be yourself and stay calm. Prior to the trial or hearing, go over in your own mind those matters about which you will be questioned.
Dress as if you were going to an important event. Men should never wear a hat in the courtroom, unless it is religiously necessary. There is no required dress code in a courtroom. However, testifying before a jury or judge is very formal and important, and you give credence to your testimony when you dress as if the matter is important to you. Further, it is important to have a neat appearance, and to dress in a manner that shows respect for the courtroom proceedings, and your presence before a jury or a judge.
Avoid distracting mannerisms or actions that will distract the jury or judge. Never chew gum, candy, or other objects that may make you difficult to understand. Present your testimony clearly, slowly, and loud enough so that the juror seated farthest away from you can easily hear and understand everything you say. If is better to speak with a firm and voice which can be heard by everyone in the courtroom without difficulty. Not all jurors have the same hearing ability. Older jurors, attorneys and judges might have difficulty in hearing so speak loud enough for all to hear.
Never speak to jurors or discuss the case outside of the courtroom. While in public places outside the courtroom unbeknownst to you there may be jurors present who are part of the jury in which you will be testifying. Accordingly, for that reason you are never permitted to discuss the case with anyone, including the attorneys unless you are in a private secured location. Remember, too, that jurors may have an opportunity to observe you outside the courtroom. If you see a juror, you are not allowed to speak to the juror, even to say hello.
Also conduct yourself in a dignified and respectful manner. From the moment that you enter the courtroom or courthouse, your behavior must be consistent with the, and appropriate to the seriousness of the proceedings. When you are called into court for any reason, be serious and avoid saying anything about the case until you are actually on the witness stand. Also, do not read in the courtroom, unless asked to do so by the judge or the attorneys.
Never exaggerate or guess in your testimony. Don't make overly broad statements that you may have to correct. Be particularly careful in responding to a question that begins, "Wouldn't you agree that...?" The explanation should be in your own words. Do not allow an attorney to put words in your mouth. Give positive, definite answers when at all possible. Avoid saying "I think," "I believe," or "In my opinion." If you do not remember certain details, it is best to say that you don't remember. If you don't understand the question, say so. Don't make up an answer.
Expect that after you give your testimony you will be subject to cross –examination. In every criminal case both sides have a chance to question every witness. Never underestimate the power of the skill of a criminal attorney in cross-examination. Lawyers you practice criminal law, both defense and prosecution, are highly skilled in the art of cross-examination. Everything that you say on direct will be subject to cross-examination. If you lied, or gave half-truths, mistaken, or gave prior inconsistent statements the skilled attorney who is trained in cross-examination will often expose your direct testimony as not believable. Remember questions asked by both sides have the same goal - to find out what is true. Always remember that the purpose of cross-examination is to raise doubts about the accuracy of your testimony. If you feel you are being doubted in cross-examination, remember that to raise doubt is the defense counsel's job. Try not to take questions personally or be upset by an attorney's questions. Always be courteous, even if the lawyer questioning you appears discourteous. A witness who is angry or upset may appear to be less than objective. Do not appear to be a “smart ass” or "wise guy" or you will lose the respect of the judge and the jury.
Jurors are ordinary people, just like you. Remember it is the jury that you are speaking to, therefore, always look at the attorney asking the question, but turn to the jury and speak to them when you are giving your response. They want to see your voice and see that you are looking them in the eye when you answer the questions. Although you are responding to the questions of a lawyer, remember that the questions and answers are really for the jury to hear because they will decide the case and not the lawyers.
Listen first, think and answer. Always listen carefully before you speak. The brain works like this, you listen with the ear, you process with the brain and you speak with your mouth. If you do not follow that order you will be a terrible witness. Before you speak you must understand the question (have it repeated, if necessary), then give a thoughtful, considered answer. Do not give an answer without thinking about your answer. This is not a race. Although answers should not be rushed, neither should there be an unnaturally long pause between the question and the answer since a long pause might give the judge and jury the impression that you are making up a response and not telling the truth.
Answer the questions verbally the court reporter or microphone cannot record nods of the head. Do not nod your head for a "yes" or "no" answer. Speak out loud, so that the court reporter can hear the answer. For the same reason, try to avoid words like "yah," "nope," and "uh-huh."
Answer only the questions asked and never volunteer information. Do not volunteer information which has not actually been asked of you. If you don't understand the question asked by one of the attorneys, ask the attorney to repeat or rephrase the question so that you understand exactly what is being asked.
Always testify to the facts. A witness unless he or she is an expert witness can only testify to the facts, opinions of fact witnesses are never permitted. Opinions of witnesses as to character are sometimes allowed. The judge and the jury are interested in the facts that you have observed or about which you have personal knowledge. Therefore, don't give your conclusions and opinions, and don't state what someone else told you, unless you are specifically asked, and the judge approves it. Hearsay is generally not permitted of any witness unless the judge and the attorneys agree that it is permissible under the rules of evidence.
Mistakes happen sometimes happen, if you do make a mistake during your testimony correct it as soon as possible. If you make a mistake with one of your answers do not wait for the attorney to ask you a question to correct it. Simply correct it before you answer the next question posed. Remember iI this happens to you, don't get flustered. Just explain honestly whey you were mistaken. The jury understands that people make honest mistakes, and will appreciate that you corrected it before you were cross-examined on it.
Follow the judge's instructions at all times, and if there is an object immediately stop your response. Stop instantly when the judge interrupts you, or when an attorney objects to a question, and wait for the judge to tell you to continue.
Don't start to answer a question until the question is finished. If you haven't heard the entire question, you don't really know what you are being asked. In addition, sometimes an attorney may raise an objection to the question being asked. "Objection" is a legal term that means one of the attorneys feels you are being asked an improper kind of question. When you hear a lawyer say "objection," simply stop speaking and wait for the judge to rule on the objection. If the judge decides the question is proper, he or she will overrule the objection. If the judge decides the question is not proper, he or she will sustain the objection. You will be told either by the judge or the attorney whether to go ahead and answer the question. Sometimes the judge and attorneys will need to talk just amongst themselves. A "sidebar" is when the judge and the attorneys meet at the judge's bench to discuss various matters, including technical disputes over the Federal Rules of Evidence. They meet at the judge's bench so that the jury cannot hear their discussion.
Do not talk about your testimony with other witnesses in the case. In all cases the judge will impose a sequestration order. That means that you are never permitted to talk about your testimony with other witnesses in the case. Accordingly, after a witness has testified in court, he or she should never tell other witnesses what was said during the testimony until after the case is over. Do not ask other witnesses about their testimony, and do not volunteer information about your own. Sometimes an attorney may ask if you have talked to anybody about the case. It is perfectly proper for you to have talked to people before you testified, such as the prosecutor or your family or friends, and you should respond truthfully to this question.
Vincent J. Sanzone, Jr., Esq.
YourCivilRights@gmail.com
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