1. 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 he 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.
2. 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.
3. 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.
4. 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 mater 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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."
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
P.O. Box 261
277 North Broad Streetr
Elizabeth (Union County), New Jersey 07207
(908) 354-7006
