More Tips To Improve Your Effectiveness as a WitnessBy Calibre Press | Jan 18, 2021
In the first installment of this special series, we shared four tips from a former state and federal prosecutor for improving your effectiveness in court when called as a witness:
1. Speak clearly and plainly.
2. Describe rather than conclude.
3. When being questioned, look at the examiner. When answering, look at the jury.
4. Don’t hesitate to have a question rephrased or clarified.
Here are five more to conclude the series:
5. “I don’t know” vs. “I don’t remember”
When you’re sure you don’t know the correct answer to a question, say so clearly and confidently. This doesn’t mean you’re ignorant; it means you did not directly observe the facts about which the questioner asks. However, if you’re not positive that you don’t know, say, “I don’t remember.” This is an important distinction. If you say, “I don’t know,” you close examination on that point. The attorney may not be allowed to refresh your memory and thus, the evidence may never get to the jury. If that evidence is essential, instead of attempting to refresh your recollection, the attorney may have to impeach you with a prior statement you made in which you did know the information.
6. Refer to your report or notes, if necessary.
Opinions differ on the advisability of an officer referring to notes and reports while testifying. Some officers think that the jury is more likely to trust notes and reports made closer to the time to the events recorded and will, therefore, give more weight to testimony given directly from this written documentation. Prosecutors and judges generally prefer a witness testify from his or her recollection directly without relying on notes and reports. This is not to say that if you need to refer to your report to refresh your memory in order to give complete and accurate testimony you should hesitate to do so. But, do not rely on reading from or repeatedly referring to your report as a substitute for thoroughly preparing and refreshing your recollection before your testimony.
Before you refer to anything to refresh your recollection during your testimony, it’s a good idea to ask the judge permission and clearly identify what you are referring to. [Special note: Be aware that the rules as to when notes used to refresh your recollection are discoverable to the defense differs amongst state and federal rules of evidence. Obviously, they should be free of any inappropriate content. Moreover, anything you might use to refresh your recollection on the stand should have long ago been provided to the prosecutor who can ensure compliance with all rules regarding discovery obligations.]
7. Do not discuss your testimony with other witnesses.
In most criminal trials, one or both attorneys have invoked the “exclusionary rule” which excludes a witness from being in the courtroom and listening to the testimony of any other witness. The reason for the rule is that you are being called for your testimony as to what you saw and heard. People are naturally influenced by what they hear. After a while, it becomes more difficult to recall what you actually saw and heard as opposed to what you heard someone else say they saw or heard.
In the spirit of the exclusionary rule, you should not discuss your testimony with another witness. Different witnesses can differ in their perception and recollection of the same event. The jury doesn’t necessarily expect you to agree with or parrot another witnesses’ testimony. If you do, it suggests collusion or rehearsing.
In many courts, jurors receive an instruction from the judge regarding discrepancies between the testimony of witnesses. This instruction, which is usually part of a longer one that provides guidelines on judging the credibility of witnesses, often includes a statement similar to the following:
“You should bear in mind that inconsistencies and contradictions in a witness’ testimony, or between the testimony and that of others, do not necessarily mean that you should disbelieve the witness. It is not unusual for persons to forget or to be mistaken about what they remember and this may explain some inconsistencies and contradictions. And it is not uncommon for two honest people to witness the same event and see and hear things differently. It may be helpful when you evaluate inconsistencies and contradictions to consider whether they relate to important or unimportant facts.”
While you are not to discuss your testimony with other witnesses, it’s natural that you might discuss the case with friends, relatives or co-workers. Do not hesitate to acknowledge this on the stand. Also, don’t hesitate to acknowledge that you prepared to testify by meeting with the prosecutor and discussing what questions you might be asked. “You consider testifying a serious and important responsibility,” said the former prosecutor, “and you would be derelict not to prepare for it.”
Profanity should be used in court only if it’s a direct quote. Moreover, you should warn that profanity was used and ask the examiner if he/she wishes to have it repeated. This shows your respect for the jury’s sensibilities and emphasizes the indecency of the language, which is usually the defendant’s or a cohort’s.
9. Addressing the court
Always use the term, “Your Honor.”
“Judge” is too familiar and informal, except when combined with the judge’s name in referring to an absent judge in the third person.
More to add? Feel free to e-mail us at: [email protected].
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