Scoffing at the situation, “They can’t prove this case. They don’t have any evidence.” My friend if that were only true.
Almost without fail, the prosecution has testimony and plenty of it to offer as evidence. Contrary to a popular misunderstanding, testimony is evidence. In fact, over 99 percent of all the evidence presented in courtrooms around our country is sworn testimony. Simple, he said, or she said, testimony given under oath. And make no mistake, testimony can be downright deadly or it can save your hide.
Abstractly, almost anyone understands the point, but when your life or liberty are at stake – -testifying goes from an uncomfortable idea to being flat terrifying. Think public speaking being considered scarer than death. Now turn that public speaking fear “up to 11,”[i] and you have testifying to save yourself or clear your name.
Most defense attorneys recognize that your average, ordinary person accused of a serious offense is probably not ready to be professional witness right off the bat. With their work cut out for them, the exceptional defense attorney sets aside as much time as possible to prepare the witness to testify. As the Legendary Basketball Coach John Wooden used to say, “Failing to prepare is preparing to fail.” And this is no exception to that rule.
The preparation usually includes working with the accused to tell their story (and keep them calm on the stand, and defend themselves on cross-examination). Putting aside the skills necessary to protection oneself on cross-examination, the focus is usually on the presentation of testimony. Their story.
Testifying is about the defendant and not about the attorney. It goes without saying that it is not for the attorney to concoct, devise, manufacture, or create a story or narrative for the accused. The attorney is there to work with and assist the client in conveying their story to the jury as authentically as they can. Usually, the more authentic the witness is, the more credible the jury will find their presentation.
With the above in mind, there are few common guidelines for testifying. First, when you are answering a question, please make sure you understand the question before you attempt to answer the question. If you do not understand the question, ask for clarification or for the questioner to rephrase the question.
You may even pause to think about what you might say before you verbalize your answer (provided the pause is natural, no more than is necessary, and is not contrived). On the other hand, there is nothing worse than answering the question, but appearing not to know what you are talking about. That kind of silliness is always credibility demerit for the jury.
Second, do not allow the prosecutor to “force” you into answering a question with only a “yes” or “no.” Sometimes, the question cannot be answered with a simple “yes” or “no.” For example, you take a flight from Boston to San Francisco. The flight lands at O’Hare Airport in Chicago, Illinois, and the question to you on the stand is this, “Ms. Accused, have you ever been in Chicago?” Additionally, you did not get off the plane (as the plane was merely refueling) and you had never Chicago otherwise. How should you answer the question? Correctly, you could answer the question either “yes” or “no.” The more accurate way to answer the question if pressed is to answer with “May I explain?” And then explain the above scenario. Remember, as the witness being questioned on the stand, you can answer the question any way you want so long as you answer. The prosecutor is not allowed to “force” an answer.
Third, when answering questions, do not volunteer information. Like Hagrid bemoans in the Harry Potter stories, “Shouldn’t have said that, should not have said that.”[ii] If the questioner wants to know something, then the questioner will ask. It is not up to the witness to decide to augment, add, supplement, or make addendums to the question asked. Usually, volunteering information backfires for the witness and creates new avenues of cross-examination for a skilled cross-examiner. Listen extremely carefully to the question and answer only the question being asked.
Fourth, do not ramble. “Just the facts.”[iii] Answer the question asked as succinctly and directly as possible. If the question is, “what color is the sky?” the answer should be blue (unless it was sunset, sunrise, or nighttime). If you start answering about the color of your SUV or dog or shirt, then jury is going sour on your credibility. If you can answer the question, then answer the question.
Also, do not be evasive in your answers. If you do not know something, then say so. There is nothing worse than answering a question without answering the question or making up an answer. As the defendant, you will suffer the ramifications, if the jury suspects you are not being 100 percent honest with them in your testimony.
Fifth, always be polite and respectful when answering a question. Always. It should be “yes, sir,” “no, ma’am,” or “yes, Your Honor.” There is no excuse for not being polite and respectful. The jury will respect you for your politeness.
Sixth, if the prosecutor is attempting to provoke, badger, or disrespect you while you are on the stand, then you must remain cool, calm, and collected. In the same vein, do not argue or bicker with the prosecutor. It looks awful and hurts your credibility with the jury. Let your attorney deal with any inappropriate questions.
Look at it this way, prosecutors do not cross-examine witnesses on a regular basis (or as much as defense attorneys do in hearings or trials). In our system, cross-examination is akin to a fine art and is the greatest legal mechanism to getting to the truth.[iv] It is a skill that takes years of practice to perfect. Imperfect cross-examinations often come off nasty, cumbersome, embarrassing, and usually reflect poorly on the cross-examiner (and not the poor soul trying to answer the questions). Remaining polite and respectful is one of the best ways to completely disarm a prosecutor’s inartful cross-examination. In many instances, the prosecutor will become frustrated because you are not taking the bait and engaging in an argument with them.
Seventh, while you are testifying, maintain eye contact with the jury. These are the people that you are trying to convince. The members of the jury are the most important people in the trial.
It takes a lot of practice to maintain eye contact with the jury correctly. When you sit in the witness stand, angle your chair to face towards the jury best you can and look directly at them. Eye contact is the key. When answering the question, speak directly to the jurors. When you are finished answering the question, look back to the questioner for the next question and then look back to the jury to answer the question. And so on and so forth. Again, this takes a lot of practice, but it pays huge dividends because it includes the jury.[v]
Eighth, if you are caught in an apparent inconsistent statement, then stop and think. If you can explain the inconsistent statement, then super; if you cannot, then move on. For example, on direct examination, you testified that the “light was green.” At the time of the accident, the told the police officer making the report that the “light was red.” A good cross-examiner will confront you with the change in your testimony and make it seem like you are lying or have a bad memory or cannot be trusted. If you can explain the change, then do so; if you cannot, then move on. Sometimes, things happen and if it cannot be explained, then it best to keep pushing forward.
Nineth, if the witness has prior convictions, then the witness will most likely have to own up to the convictions. Admit to what you need to admit to but do not make it seem like you are proud of your convictions. There are special rules for how prior convictions are addressed before the jury regarding a witness’s testimony. These issues will be addressed in a subsequent blog.
Tenth, you should understand that the objections and specific rulings are are so that you know how to act. Again, the various objections will be addressed in subsequent blog because there are so many to discuss.
Eleventh, after cross-examination, your attorney will have a chance for redirect examination. Redirect examination comes after cross-examination. This second set of direct questioning allows your attorney to ask you questions to clarify some of your answers from cross-examination. Remember, if the cross-examiner made some cheap points by asking a misleading question or two and did not allow you to clarify, then your attorney can ask for you to fully explain whatever needs to be explained to clean up those answers. In some instances, redirect allows the jury to get a better understanding of what you were talking about at the time.
Twelfth, if you are going to introduce certain other evidence (like photographs or physical objections), then your attorney should go over the predicate or foundational questions that allow the court to admit the evidence. Predicate questions are time honored questions that establish knowledge and authentication so that rules of evidence are satisfied, and the evidence can be admitted into evidence.
Lastly, if you are being questioned, do not look to me as your counsel for the answers or confirmation that your answer is correct or that you are doing a good job on the stand. I cannot participate in your testimony in that way. You are the witness, act like you belong on the stand telling your story, and the jury should want to hear what you have to say. Additionally, if the prosecutor stands directly between you and your attorney, then you will not be deterred and can continue to answer the questions.[vi]
Like anything, these seem like common sense. I can tell you from my experience, the above information is anything but common. These guidelines can make or break your testimony at a trial. Like anything in life, the best prepared witnesses who practice with their attorneys tend to do better on the stand. Unfortunately, great testimony sometimes cannot cure terrible facts.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you are looking for someone to guide you through the criminal justice system or to prepare to testify,[vii] then please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss this matter and any other criminal justice matter.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. You can also check out the author at his profile at AVVO.com (Candela)
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[i] This is Spinal Tap. Directed by Rob Reiner. Embassy Pictures. 1984.
[ii] Harry Potter (books). J.K. Rowling. Scholastic Press. (1997-2007)
[iii] Detective Joe Friday. Dragnet. (1949)
[iv] 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. 1974). ([cross-examination] “beyond any doubt the greatest legal engine ever invented for the discovery of truth”).
[v] Attorneys often do not understand and appreciate that a great exchange between the witness and examiner is usually lost on the jury if they are merely spectators to the scrum because the jury is not participating. On the other hand, when the witness ignores the questioner and looks directly at the jury while making direct eye contact with them, he transforms the situation and takes the jury from being mere spectators to engaged participants (hanging on each answer). It usually makes the jurors want to hear what is next.
[vi] Practioner’s point. I learned from an extremely talented defense attorney when I first started to position myself between the witness and the prosecutors. To stand directly in the eye line of the witness and the prosecutors. The reason this is done during cross-examination is to command the situation. Additionally, the purpose was to disrupt any signals (whether subtle or overt) between the witness and prosecutors. Many times, the witness is simply looking for a head nod, wink, eye roll, raised eyebrow, or some type of affirmation that their answers are acceptable or good or bad and stay away from that topic. Ethically, attorney should not be signaling a witness on their answers (but it happens quite a bit). Also, standing between the witness and prosecutors makes the witness focus on me (and not look at the jury) and answer my questions. In a way, the cross-examiner is defining the questioning both with the leading questions and the witness’s undivided attention. If done correctly, the questions of the cross-examination become an after thought.
[vii] Checklist for Preparing a Witness to Testify.
1. Make sure you understand the question before you attempt to answer it.
2. Do not allow the prosecutor to “force” you into answering only “yes” or “no” to a question if an answer requires more explanation. (Example: The “flight to Chicago” question).
3. Do not volunteer information. (If we want to know, we will ask you.)
4. Do not ramble. Answer the question asked directly. This means do not be evasive in your answer.
5. Be polite and respectful– “Yes, sir,” and “no, sir” are to be used when answering questions.
6. Do not argue with the prosecutor— YOU WILL ALWAYS LOSE! Be polite and respectful, even if you are provoked (or disrespected).
7. Maintain eye contact with the jury. (They are the ones you have to convince).
8. If you are caught in an apparent prior inconsistent statement— think, then try and explain the inconsistent statement if you can. (If you cannot, then do not.)
9. Regarding your prior convictions: Admit them, but do not sound proud of them.
10. Do not let the prosecutor annoy or intimidate you– stay cool! (This is easier said than done.)
11. Understand what the objections are– what “sustained” and “overruled” mean.
12. Understand the purpose of re-direct examination.
13. Understand the predicate questions required for the admission of any exhibits that are to be introduced. (E.g., is this photograph a “fair and accurate” representation…etc.).
This checklist was adapted from an inhouse seminar presented by J. Kenneth Littman. Public Defender’s Office (Tampa).