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The 16 Most Important Things To Do – And Not Do – On The Witness Stand

por el difunto Mark Sullivan, abogado penalista colegiado, Palm Springs, California. Publicado originalmente en 2005 y reimpreso con permiso de la revista Crime, Justice and America.

Whether you’re the defendant or a witness, proper preparation – following the lawyer’s advice – can be the single most important thing you can do to affect the outcome of the case.

1) LISTEN TO THE QUESTION
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This seems pretty obvious, but you would be surprised how often judges interrupt witnesses to tell them exactly that. You’re likely to be somewhat nervous – and that could make you try to anticipate the question. Don’t. Sometimes attorneys use “legal language”, or words that have special meanings in the law, especially at the end of a question. Wait for the lawyer to ask the entire question, and make sure you understand what is being asked.

2) THINK BEFORE YOU ANSWER

Don’t rush. First of all, the court reporter can’t 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.

Second, waiting for the question to be asked will allow the other attorney to object if necessary. Never try to answer quickly because you want to squeeze in your response before the objection can be raised: If the objection is sustained, 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 you (or the party you’re trying to help).

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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 respond accurately. You will 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 to prepare follow-up questions.

3) ANSWER THE QUESTION AND ONLY THE QUESTION

This, too, seems obvious, but it’s where most witnesses make serious mistakes. The rules here are different than in everyday conversations: If a friend asks you “Do you know what time it is?” he wants to know the time – not whether or not you know it – and “It’s 3 o’clock” would be an acceptable answer; but in a courtroom, that would be non-responsive. Answer only the question you’re being asked.

Many witnesses believe they have to carry the entire case by themselves. If the question calls for a yes or no answer, try to answer yes or no. Don’t worry whether your one-word response makes the complete point you were trying to make. Witnesses don’t make 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 the witness will respond, “I don’t know what you’re driving at.” That’s fine with me. He doesn’t have to know what I’m driving at. It’s my job to ask the questions, and it’s his job to answer them truthfully, regardless of how it may affect his position. how it may affect his position.

Don’t worry that if the “right” question isn’t asked, 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:

Abogado defensor: Now sir, you didn’t actually see him bite the man’s ear off, did you?

Testigo: Well, I’m not sure how to answer that, because I —

Abogado defensor: (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?

Testigo: No, sir. But I —

Abogado defensor: No further questions, Your Honor.

The defense attorney sits down, confident that he has successfully driven home his point. The witness is frustrated because he feels his answer was misleading, and he thinks that the questioning is over. It’s not: There could be re-direct examination, then recross, then further re-direct, then further re-cross, and on and on until the lawyers are through. The anecdote continues:

Fiscal: You just testified on cross-examination that you didn’t actually see the man bite his ear off, right?

Testigo: Right.

Fiscal: 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?

Testigo: Because I saw him spit it out.

See? As long as the lawyer on your side has done his homework and knows the case, the critical information will come out.

4) DO NOT VOLUNTEER INFORMATION

Too often, criminal defendants (and witnesses) forget to answer only the question that is asked. Let’s say you’re charged with getting drunk and punching your neighbor in a fit of rage. You deny that this happened. You do have a criminal history, however: 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 to this case, and hearing about them might prejudice the jury against you.

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The prosecutor asks you, “Isn’t it true that you were drunk that day?” Instead of heeding your attorney’s advice and answering the question asked (“No, sir, I was not”), you try to win the case all by yourself by saying “No, sir, I don’t drink.” Right there, with one simple, unnecessary and counter-productive statement, your attorney’s success in excluding the drunk driving evidence is all for naught. Those convictions just became relevant for impeachment purposes: “He said he doesn’t drink; and yet we know 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.”

5) TELL THE ABSOLUTE TRUTH

Tell the truth, even if it conflicts with “your side’s” other testimony or evidence. Juries understand that two people witnessing the same incident can remember it differently. In fact, if all of the witnesses tell the exact same story, it can look contrived and suspicious .

A young man was charged with first-degree murder. His mother had testified on direct examination that he was with her on the afternoon the victim had been shot and killed miles away. The prosecutor cross-examined her:

“Ma’am, do you love your son?” “Yes, sir.” “You don’t want anything bad to happen to him, do you?” “No, sir.”

The prosecutor then asks, almost routinely,

“Would you ever lie, let’s say, to protect your son from going to the gas chamber?” “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 didn’t believe his mother’s testimony. If she had told the truth, and admitted that she would be tempted to commit perjury to protect her son — even at the risk of being sent to prison herself — the jury would have believed her alibi testimony.

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The moral of the story: You can’t get in trouble if you just tell the truth. Remember that if telling the truth would convict you, your lawyer can simply keep you off the witness stand. The prosecution can’t call you.

6) DON’T SPAR, AND DON’T TAKE SIDES

Resist the temptation to spar with the opposing attorney. In fact, treat each of the attorneys with equal politeness. The jury will respect that, and they will reward you with credibility points.

If an obnoxious, opposing attorney — who’s been getting under your skin all day with his annoying behavior and whiney voice – makes a stupid mistake such as using your name to describe someone else (“Mr. Jones, did you see Mr. Jones there?”), you may want to respond, “Well, that question doesn’t make any sense, does it? I am Mr. Jones, remember? Of course I saw myself there!”

But don’t do it. 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.

7) 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, counterproductive.

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.”

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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.

8) GUESSING AND ESTIMATING

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, 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.

9) BODY LANGUAGE

If you are a defendant, you will usually 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, and 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. Don’t fold your arms across your chest. It makes you look defensive, as if you do not want to hear the question.
  2. Keep you hands away from your mouth — as this, too, makes you look as if you are lying.
  3. Don’t mumble. Speak up and with confidence. Use the microphone, and sit up straight.
  4. Don’t get up and leave just because you think the questioning has stopped. Remain seated until the judge tells you that you’re excused.

10) 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”. 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, because it sounds deceptive.

11) DON’T ANSWER ANY QUESTIONS YOU DON’T UNDERSTAND

If you don’t understand a question, say so. It is the lawyer’s responsibility to ask questions that you can understand.

“I don’t know” and “I don’t remember” are perfectly valid responses if they are truthful.

12) DON’T LOOK AT YOUR ATTORNEY

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.

13) DON’T TALK TO YOUR ATTORNEY
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Not while a witness is testifying, anyway. While your input on the proceedings is always important, your lawyer needs to give his undivided attention to the current testimony in order to make split-second decisions concerning objections, prepare his cross-examination, etc. He can’t effectively divide his attention between the witness’s testimony and your comments, even if you’re only whispering. Write down your comments, and make sure to remind your attorney to check them out before he finishes his examination of the witness.

14) CONSULTING WITH YOUR ATTORNEY

If necessary, 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 granted that opportunity; but if you’re seriously confused and don’t want to say the wrong thing, you have the right to ask.

15) MORE ABOUT TELLING THE TRUTH

If any lawyer has spoken with you about your testimony and you’re 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.

16) DON’T DISCUSS TESTIMONY WITH OTHER WITNESSES

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, and you may not discuss the case with any other witnesses.

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