Some thoughts on interviewing witnesses in criminal cases ...
[See Pretrial Preparation in Criminal Cases for more extensive advice on interviewing witnesses and investigating your case.] As you consider the potential evidence that you will need to tell the factual story of your case, remember that you will connect most evidence to fact witnesses who are sources of the evidence, e.g., an eyewitness to an occurrence, in the sense that the witness has personal knowledge of the fact in question. These are fact witnesses. Another type of witness is the predicate witness; the predicate witness, e.g. a hospital's medical records librarian, has no personal knowledge of the facts of the case, but is necessary as a conduit to establish the legal predicate (foundation) for the admissibility of evidence, e.g., the hospital records. under the business records exception to the hearsay rule. Another type of witness is the character witness. A character witness may be called to testify to an admissible character trait of the accused, another witness or the complainant. The expert witness is another category. The qualified expert witness, who may have no firsthand knowledge of the alleged crime, is permitted to venture admissible opinion testimony about disputed issues. By using the talents of expert witnesses, the parties actually create a special brand of evidence, known as forensic evidence (1).
As part of the pretrial process, these various witnesses must be found and developed. Prosecutors will have much of this work done for them by the investigating law enforcement agency, e.g., the police. On the other hand, defenders must learn the techniques for identifying potential witnesses, finding them, and obtaining useful information from them. What is the right way to interview and question a witness? Are there any guiding principles? How do you manage the conversation? How do the techniques you employ in interviewing a witness need to morph to conform to the circumstances?
Locating and interviewing fact witnesses: As a general rule, defenders doing their own investigation should act with dispatch to identify and locate fact witnesses. Otherwise they may disappear. Once you have identified and found the fact witnesses, you along with your supporting witness must talk with them, and, where appropriate, get an oral and/or written witness statement. Locating and finding witnesses should not be delayed. When you choose to talk to a witness can, however, depend on whether you are ready to conduct an interview. Witnesses are not equal in importance. You may not be ready to talk to a particular witness because you need to talk to another witness first or because you aren't yet sufficiently prepared to question the witness. You may want to pay a visit to the scene before talking to a certain witness. You may want to first gather and read documents, e.g., an autopsy report, or examine physical evidence before talking to the fact witness about the document or item. The point is that you and your supporting witness don't always rush out shilly-shally and interview every potential witness ASAP. Sometimes, you simply have more urgent matters to investigate. You decide the order in which you will talk to potential witnesses. It's a matter of informed choice. Sometimes, you will need to double back and revisit a witness because of facts developed in the interim after your first interview.
Types of witnesses: Witnesses fall within three general attitudinal categories best described as friendly, neutral, and adverse. Witnesses may be lay persons or experts. Your interviewing approach will usually need to be tailored to the type of witness you will be interviewing.
Who locates and interviews witnesses: Should you use an investigator to find, locate, and interview witnesses. There is no easy answer. Some investigators, often they are ex-cops, have developed the knack of getting people to talk. If you don't have the knack and you do have the bucks, you will want to employ such an investigator. Your work schedule, the receptivity of the witness, the availability and skill of the private investigator, the fact that an investigator can use ruses that you, as a lawyer cannot , etc., may guide the decision of who will approach the potential witness. For information about finding a private investigator, see Pretrial Practice.
General steps in interviewing a fact witness: [Note:Always have a "prover" or "supporting witness" present with you when you interview a fact witness.] Greet the witness in a friendly manner. Be relaxed and affable to calm the witness. Smile if it seems appropriate. Explain who you are. Tell the witness why you want to visit. If the witness is a friendly witness, explain the importance and relevance of the witness' testimony to your case story and your theory of the case. Confirm the witness' name, address, telephone numbers, and occupation. If the witness is a friendly witness who has previously given a favorable written statement, show the witness his previous statement and have the witness review it. Then have the witness tell you, without interruption, what s/he knows in a free, running narrative. Listen very carefully to what the witness says. When the witness completes the uninterrupted story of what s/he knows, question the witness in detail on all the relevant aspects of the story. In your focused questioning, use the T- funnel method of inquiry where you go from general to specific questions on each issue of relevance. Compare the witness' account of what happened with the reports made by other witnesses. If there are inconsistencies and the witness is a favorable witness, you will typically have the witness to explain the inconsistencies. If there are inconsistencies in an adverse witness' statement and you have a written, recorded or witnessed record of the inconsistencies that can be used for impeachment of the witness at trial to prove a prior inconsistent statement, you probably won't want to point those inconsistencies out to the adverse witness until trial. Show the favorable witness the physical or demonstrative exhibits that the witness will authenticate and/or explain. If the witness will be asked predicate (foundational) questions for the introduction of an exhibit, e.g., a business record, go over the precise questions you will ask and the exact answers the witness will give. If the witness will do a demonstration, rehearse it. Provide the friendly fact witness with what you think the opposition counsel will ask him on cross-examination and why. If the witness is unfamiliar with testifying in court, explain relevant courtroom procedure. Determine whether the opposition has tried to interview the witness. Find out if the witness talked to the opposition and ,if so, get the who-when-where information in addition to what was said. Find out if the witness made a written or recorded statement. If the witness has not been interviewed by the opposition, inform the witness that it is entirely up to the witness whether to discuss the case with the opposition. In the case of friendly witnesses, you may ask the witness who decides to talk to the opposition to notify you so you can attend the interview. Go over any of the "Tips for Being A Witness" listed below. Ask the witness if the witness has any further questions of you.
Reluctant witnesses: Once you or your investigator finds a witness, how do you get the witness to talk? Knowing how to obtain useful information from persons who are hostile to your client is an art. Motivating people to tell what they know requires insight concerning human behavior and what moves people. You'll spend a legal lifetime observing and listening to people, trying to understand their reactions.
Reasons why a witness may be reluctant to talk. Consider the motives that underpin a witness' reluctance to provide you with information. Here's a starter list of some possible reasons why a witness may not feel like cooperating with you:
- The witness believes your client is guilty and doesn't want to provide information that might help the client get out of the jam.
- The witness doesn't want to get someone else (including himself) in trouble.
- The witness doesn't want to say anything that might hurt the complaining witness, e.g., the alleged "victim."
- The witness doesn't want to admit that he wasn't paying attention.
- The witness doesn't want to undergo the stress of having to publicly tell his story in a courtroom in front of a judge and trial jury.
- The witness may be embarrassed by revealing sensitive or personal information.
- The witness may be under the belief that s/he is not permitted to talk to the defense lawyer or the defense investigator.
- The witness may not be comfortable revealing information to the particular interviewer because of characteristics of the interviewer, e.g., sex, race, attitude, demeanor, age, language,etc.,
- The witness may not want to think about the act, event, or condition because it is emotionally painful.
- The witness may not want to lose time or money by getting involved in a court case (just like some people avoid jury service).
- The witness may believe that her information is irrelevant.
- 12. The witness may have other things on his mind that are of greater importance than the subject of the interviewer's questions.
Getting a witness to talk. Other than having a pleasant personality, what can you do to motivate a witness to talk? You want to put the witness at ease. Try being empathetic. Be understanding of the witness' position. Elevate the witness by sincere compliments and an appeal to his sense of justice. Ask questions that expect and invite a reply. Listen actively, and indicate by your reflective responses to what the witness says that you are hearing what the witness is trying to communicate. Respond emphatically to the expressed feelings of the witness. Without using phony chit-chat, try to show personal interest in the witness. Recognize the witness' assistance. Provide the witness information that will show the relevance of your question. Help the witness with topic selection, but take care not to make the topic so narrow that the witness will omit useful information. Respond with understanding to any expression by the witness of reluctance to talk. If a witness asks whether he should have a lawyer before talking, and you think he should, don't hesitate to tell him that he certainly has every right to consult a lawyer prior to discussing the case with you.
Framing your questions to get the right answer: This story underscores the importance of asking the correct question of the prospective witness: A priest who liked to smoke cigars worried about the bishop catching him smoking on the job. The priest asked the bishop, "Your Imminence, may I smoke this cigar while I'm praying?" The bishop replied, "You may not! Smoking will distract from your praying." The priest contemplated the matter, waited a month, and then asked the bishop, "Your Imminence, while I'm smoking this cigar, may I pray?" The bishop replied, "Of course, my son. You may think of God at any time." Think about the response you want as you plan the phrasing of your questions.
Reimbursing witnesses for financial loss incurred in connection with interviews and testifying: Can you pay a lay witness for his or her testimony? No, but your lay witnesses may be reimbursed for reasonable costs of travel and reimbursement compensation for loss of earnings at work. Indeed, one of the things you should typically do in office interviews of a witness is find out if the witness incurred any travel or parking expenses incident to coming to the interview. The witness who works by the hour and has to be absent from work may also have incurred a financial loss just to be present at the interview. You can't pay these lay witnesses for information or for testifying, but do make a sincere offer to reimburse their expenses. Just be sure that any reimbursement is by check that clearly specifies what the reimbursement is for. Of course, you may (and will typically have to) pay expert witnesses, e.g., professional witnesses, for their out-of-court and in-court forensic efforts.
Your client as a witness. Your client may be a witness, but remember that there may be a question of how much you want to know early on about your client's version of the facts. Before getting a detailed narrative concerning sensitive subjects from your client, you may want to further investigate the case.
Recording the interview. Should you record the witness interview or take a written statement from the witness? Tape recording presents an ethical issue for you the lawyer if you don't tell the witness he's being recorded. If you use a private investigator, the investigator is not under such strict ethical constraints. In Texas, if you take a signed written statement from your witness, you need to be aware of Rule 615 TRE that makes the statement discoverable at trial by opposing counsel at the outset of cross-examination of your witness. See Ethics. Witnesses and the client taking the Fifth Amendment privilege. This article provides a brief review of the law surrounding the refusal to testify, including the issues of quashing subpoenas and witness immunity.
Helpful tips for your witness to know prior to testifying: A little preventive maintenance in preparing your witnesses for testimony may prevent a major meltdown on the witness stand. Below is a list of tips on testifying in court that may be helpful to you or your assistants in preparing a witness to testify. Whether you would actually give the witness a hard copy of this advice is questionable. Since you wouldn't necessarily want the opposition to wave a hard copy of this in front of the jury, you might simply want to refer the witness with access to a computer to this page and let them look for themselves, not download, at it in the privacy of their own home.
+ See the CCJA Bibliography page for more references regarding witness interviews and advice to prospective witnesses. + Lawyers, jury consultants, and private investigators provide some free advice about interviewing witnesses in a criminal case: (1 - tips on how to begin the interview), (2 - should you interview the witness), (3 - criminal defense witness interviews and statments), (4 - defense interview of prosecution witness es), (5) - prosecution/law enforcement interview of witnesses), (6- how to deal with the difficult interview) .
+ These articles provide some practical guidance to lawyers regarding witness preparation and where the line is drawn between proper preparation and coaching: Zacharias, Fred, et al, Coaching Witnesses, 87 Ky. L. J. 1001 (1999); Applegate, John, Witness Preparation 68 Tex. L. Rev.277 (1998).
BEING A WITNESS
[Note:For possible amusement, read Mark Twain's Advice to Witnesses. Here are sites with advice to witnesses and explanations of the criminal process: (1 - Ind. - prosecutor) (2 - NJ)]
GENERAL ADMONITION: MOST OF THE FOLLOWING SUGGESTIONS ARE THINGS YOU MAY HAVE ALREADY THOUGHT ABOUT. DON'T BE OFFENDED BY THEM. WHAT YOU HAVE TO SAY IS IMPORTANT, BUT THE WAY YOU SAY IT AND THE WAY YOU PRESENT YOURSELF HAVE A LOT TO DO WITH WHETHER YOU WILL BE BELIEVED BY THE JURY. PAYING ATTENTION TO YOUR APPEARANCE AND PRESENTATION STYLE CAN MAKE A DIFFERENCE. EXPECT TO BE QUESTIONED BY LAWYERS FOR BOTH SIDES.
PLEASE READ THESE SUGGESTIONS SEVERAL TIMES BEFORE THE TRIAL. DON'T WORRY ABOUT TRYING TO MEMORIZE THEM . JUST TRY TO UNDERSTAND THE GIST OF THEM BEFORE YOU TAKE THE STAND TO TESTIFY.
1. ABOUT YOUR APPEARANCE, DRESS LIKE YOU WOULD FOR CHURCH OR AS IF YOU WERE GOING TO BE INTERVIEWED FOR A JOB YOU WANTED. A NICE DRESS FOR LADIES AND A SPORT COAT AND TIE FOR MEN WILL HELP ESTABLISH A POSITIVE IMAGE. MEN SHOULD GET A HAIRCUT. BE SURE TO SHAVE THE MORNING OF THE TRIAL. WOMEN SHOULD NOT WEAR TOO MUCH MAKEUP. YOU DON'T WANT TO LOOK FLASHY OR TOUGH. A SOFT, NATURAL LOOK IS BEST. DON'T CHEW GUM, CANDY, OR TOBACCO IN COURT. IF IT IS SUNNY OUTSIDE AND YOU WEAR SUNGLASSES (SHADES) DON'T WEAR THEM IN COURT.
REMEMBER, THE PROSECUTOR WANTS YOU TO DRESS LIKE A CRIMINAL OR A CROOK OR A GANGSTER. THE PROSECUTION WANTS YOU TO LOOK TO THE JURY LIKE WHAT THEY ARE TRYING TO PROVE YOU ARE. THE PROSECUTOR WANTS YOU TO BE DRESSED IN A WAY THAT NONE OF THE JURORS DRESS, SO THEY WON'T IDENTIFY WITH YOU.
IF YOU WANT TO HELP THE PROSECUTOR CONVICT YOU, IGNORE MY ADVICE AND DRESS ANY WAY YOU WANT. IF YOU WANT TO HELP ME HELP YOU, DON'T DRESS LIKE A CRIMINAL, CROOK OR GANGSTER.
2. TELL IT LIKE IT IS. ALWAYS TELL THE TRUTH. DON'T EXAGGERATE. YOU WILL NOT HELP ANYONE BY LYING OR STRETCHING THE TRUTH, AND YOU WILL PROBABLY BE CAUGHT IF YOU TRY TO LIE OR BEND THE TRUTH.
3. LISTEN CAREFULLY TO EACH QUESTION. DON'T READ ANYTHING MORE INTO IT THAN IT ASKS. SIT UP STRAIGHT. LOOK AT THE LAWYER. TAKE TIME TO THINK ABOUT YOUR ANSWER. DON'T ALLOW YOURSELF TO BE RUSHED INTO ANSWERING. SPEAK CLEARLY. KEEP YOUR HANDS AWAY FROM YOUR MOUTH. KEEP YOUR HEAD UP. BE STRAIGHT AND PRECISE WITH YOUR ANSWER. ONCE YOU'VE SAID SOMETHING, IT CAN'T BE ERASED. OF COURSE, IF IT'S A SIMPLE QUESTION THAT CAN BE ANSWERED QUICKLY, DON'T THINK ABOUT IT TOO MUCH. OTHERWISE, IT WILL LOOK LIKE YOU ARE TRYING TO AVOID OR EVADE ANSWERING. ALSO, YOU MAY BE ASKED THE SAME QUESTION TWICE BY THE CROSS-EXAMINER, JUST IN DIFFERENT WORDS. IF SO, TRY TO BE CONSISTENT IN YOUR ANSWERS. IF YOU GIVE DIFFERENT ANSWERS TO THE SAME QUESTION, THE JURY WILL THINK YOU ARE NOT BEING STRAIGHT WITH THEM.
4. WAIT UNTIL YOU HAVE HEARD THE ENTIRE QUESTION BEFORE THINKING OF YOUR ANSWER. THEN ANSWER ONLY THE QUESTION YOU WERE ASKED. IF THE QUESTION CALLS FOR A "YES" OR "NO" ANSWER, ANSWER IT WITH A 'YES" OR "NO." DON'T VOLUNTEER INFORMATION THAT IS NOT BEING ASKED FOR.
IF YOU DON'T HEAR THE QUESTION , HAVE IT REPEATED. DON'T ANSWER UNLESS YOU KNOW WHAT QUESTION YOU'VE BEEN ASKED. ALWAYS SPEAK YOUR ANSWER. DON'T SHAKE OR NOD YOUR HEAD.
5. DON'T BE AFRAID TO SAY, "I DON'T KNOW THE ANSWER TO THAT QUESTON" OR "I DON'T REMEMBER EXACTLY --- IT ALL HAPPENED A LONG TIME AGO." BE CLEAR IN SAYING WHAT YOU KNOW AND WHAT YOU ARE ESTIMATING. DON'T GUESS. YOU AREN'T EXPECTED TO KNOW EVERYTHING. IF YOU DON'T REMEMBER SOMETHING, JUST SAY SO. IT'S PERFECTLY NATURAL TO FORGET MINOR DETAILS. DON'T MAKE THINGS UP OR GUESS. ON THE OTHER HAND, BE CAREFUL OF MAKING ABSOLUTE STATEMENTS LIKE "NOTHING ELSE HAPPENED," UNLESS YOU ARE 100% SURE THAT THE ABSOLUTE STATEMENT IS TRUE.
6. IF YOU GET ASKED ABOUT TIME OR DISTANCES, AND YOU AREN'T EXACTLY SURE, TELL THE ATTORNEY THAT YOU AREN'T SURE OF THE EXACT TIME OR DISTANCE. TELL THE ATTORNEY THAT YOU CAN GIVE THE APPROXIMATE TIME OR DISTANCE. FOR EXAMPLE, IN THIS SITUATION YOU MIGHT SAY, "I DON'T KNOW EXACTLY WHAT THE TIME WAS BUT IT WAS BETWEEN 8:30 AND 9:00 AT NIGHT" OR "I DON'T KNOW THE EXACT DISTANCE, BUT IT WAS APPROXIMATELY 20 TO 25 FEET."
7. DON'T ARGUE WITH THE OTHER SIDE'S LAWYER. IT MAKES YOU LOOK LIKE A CHUMP. DO NOT BECOME ANGRY OR FRUSTRATED. JUST ANSWER THE QUESTIONS. CROSS-EXAMINATION IS PART OF EVERY TRIAL. IT'S USUALLY NOT A PERSONAL ATTACK, EVEN THOUGH IT MAY SEEM THAT WAY TO YOU. THE LAWYER FOR THE OTHER SIDE MAY TRY TO SCORE POINTS WITH THE JURY BY BAITING YOU INTO LOSING YOUR TEMPER. THE LAWYER FOR THE OTHER SIDE IS JUST DOING HIS JOB. IF THE OTHER LAWYER TRIES TO MAKE YOU ANGRY AND ARGUMENTATIVE, DON'T GO FOR THE BAIT. STAY COOL AND BE POLITE. THE IDEA IS TO BE ON YOUR BEST BEHAVIOR.
8. IT'S AWKWARD TO LOOK AT THE JURY THE WHOLE TIME YOU ARE TESTIFYING. GENERALLY YOU WILL LOOK AT THE LAWYER ASKING THE QUESTIONS. BUT DON'T HESITATE TO LOOK AT THE JURY WHEN ANSWERING AN IMPORTANT QUESTION OR WHEN YOU HEAR ME SAY "TELL THE JURY" THUS AND SO. ALSO, IF I LOOK AT THE JURY WHEN I AM ASKING YOU A QUESTION OR WHEN I FINISH A QUESTION, YOU SHOULD LOOK AT THE JURY WHEN ANSWERING THE QUESTION. WHEN YOU LOOK AT THE JURORS, LOOK AT INDIVIDUAL JURORS, NOT JUST AT THE GROUP AS A WHOLE. YOU WON'T BE ABLE TO LOOK AT EACH OF THE JURORS DURING A SINGLE ANSWER. WHEN YOU DO LOOK AT A JUROR, LOOK THE JUROR IN THE EYE. LOOKING A JUROR IN THE EYE DOESN'T MEAN LOOKING AT HIS/HER FOREHEAD OR AT THE WALL BEHIND THE JUROR. IT MEANS LOOKING AT THE JUROR'S EYES FOR AT LEAST A THREE COUNT. DON'T STARE AT ANY PARTICULAR JUROR AND DON'T DO A QUICK SCAN. JUST MOVE YOUR EYES FROM JUROR TO JUROR, MAKING POLITE EYE-TO-EYE CONTACT AS YOU ANSWER THE QUESTION. IF A JUROR AVOIDS MAKING EYE CONTACT WITH YOU, DON'T TRY TO FORCE THE JUROR TO LOOK AT YOU. SIMPLY LOOK AT ANOTHER JUROR, AND ESTABLISH EYE CONTACT WITH HIM/HER.
9. IF YOU MAKE A MISTAKE IN YOUR TESTIMONY, CORRECT IT AS SOON AS POSSIBLE. IF YOU FEEL AN OVERWHELMING NEED TO EXPLAIN OR CLARIFY YOUR ANSWER, ASK THE JUDGE, "MAY I PLEASE EXPLAIN MY ANSWER, YOUR HONOR?"
10. DON'T GUESS. YOU ARE ONLY SUPPOSED TO TESTIFY ABOUT WHAT YOU KNOW OF YOUR OWN PERSONAL KNOWLEDGE. THINK ABOUT HOW YOU FOUND OUT THAT SOMETHING HAPPENED. DID YOU SEE IT HAPPEN? DID SOMEONE TELLYOU IT HAPPENED? WAS IT RUMOR? IF YOU DON'T KNOW IT OF YOUR OWN PERSONAL KNOWLEDGE, MAKE SURE YOU DON'T TESTIFY AS THOUGH YOU DO.
11. DON'T ANSWER JUST "YES" OR "NO" UNLESS YOU AGREE COMPLETELY OR DISAGREE COMPLETELY.
12. DON'T JUST BUY INTO THE WORDS OF THE LAWYER. IF THE WORDS ARE NOT EXACTLY RIGHT AND MAKE YOU UNCOMFORTABLE, USE YOUR OWN WORDS. THE OTHER LAWYER WILL TRY TO RATTLE YOU BY BEING RUDE OR HOSTILE OR BRUSQUE OR ABBRASIVE. KEEP YOUR COOL. BE COURTEOUS, EVEN IF THE OTHER LAWYER IS NOT COURTEOUS TO YOU. JUST TICK TO THE TRUTH AND BE POLITE. OUR RULE IN COURT IS ALWAYS BE COOL. NEVER GET MAD OR ANGRY, UNLESS IT'S FOR A GOOD PURPOSE. IF YOU DON'T LOSE IT, THE JURY WILL LOOK AT YOU AS HONEST, SINCERE, AND TRUTHFUL
13. IF THERE ARE MANY POINTS IN A QUESTION, HAVE THE ATTORNEY BREAK IT DOWN TO ONE POINT AT A TIME OR JUST ANSWER ONE POINT AT A TIME.
14. WATCH OUT FOR THE ATTORNEY WHO IS CROSS-EXAMINING YOU AND TRYING LITTLE BY LITTLE TO MOVE YOUR TESTIMONY OVER HIS WAY. DON'T LET THE LAWYER FOR THE OTHER SIDE SHADE THE TRUTH. KEEP IT LIKE IT REALLY WAS.
15. THINK THROUGH WHAT HAPPENED NOW SO YOUR TESTIMONY WILL BE ACCURATE WHEN YOU TESTIFY. TRY TO APPEAR INTERESTED IN THE CASE WHILE YOU ARE TESTIFYING. DON'T SLOUCH OR MUMBLE OR MAKE FACES OR PLAY WITH YOUR FACE OR HAIR. KEEP YOU HANDS OFF YOU FACE. ACT LIKE YOU CARE.
16. DON'T TRY TO MEMORIZE YOUR TESTIMONY. IF YOU ARE OVERPREPARED YOU WILL NOT SEEM SINCERE. JUST HAVE A CLEAR PICTURE OF THE THINGS YOU ARE GOING TO DESCRIBE. .
17. DON'T TALK ABOUT THE CASE WHILE YOU ARE IN THE COURTHOUSE, EXCEPT WHEN YOU ARE ON THE WITNESS STAND. THE FOLKS ON THE JURY MAY SEE YOU AT ANY TIME YOU ARE IN THE COURTHOUSE OR THE VICINITY. BE ON YOUR BEST BEHAVIOR. DON'T DO ANYTHING THAT MIGHT MAKE YOU LOOK BAD. DON'T TALK TO ANY OF THE JURORS OR OTHER WITNESSES IF YOU SEE THEM IN THE HALLWAYS OR IN THE ELEVATORS OR ANY OTHER PUBLIC PLACE.YOU CAN CERTAINLY SMILE AT THE JUROR, BUT IT'S AGAINST THE RULES OF COURT FOR YOU TO TALK TO JUROR ABOUT ANYTHING
18. YOU WILL PROBABLY BE ASKED IF YOU TALKED TO ANYBODY ABOUT THE CASE. DON'T HESITATE TO ADMIT THAT YOU DID. IF THE OTHER LAWYER ASKS YOU IF YOU TALKED TO ME, TELL HIM YES. IF HE ASKS YOU WHETHER WE TALKED ABOUT YOUR TESTIMONY, TELL HIM THAT WE DID. IF THE OTHER LAWYER ASKS YOU WHAT I TOLD YOU, TELL HIM HONESTLY THAT I TOLD YOU TO TELL THE TRUTH, WHICH IS EXACTLY WHAT I WANT YOU TO DO - TELL THE TRUTH.
19. IF YOU HAVE A PRIOR ( FELONY OR MORAL TURPITUDE MISDEMEANOR) CONVICTION, THE OTHER LAWYER IS ENTITLED TO ASK YOU IF YOU HAVE BEEN CONVICTED. IF YOU HAVE BEEN CONVICTED OF SUCH A CRIME, ADMIT IT. BE HONEST IN ADMITTING YOUR PRIOR CONVICTIONS.
20. TRY TO BE CALM. BE COURTEOUS TO THE LAWYERS FOR EACH SIDE AND RESPECTFUL OF THE JUDGE. DON'T ARGUE WITH THE LAWYERS OR THE JUDGE. DON'T INTERRUPT THE LAWYERS OR THE JUDGE. DON'T BE ARROGANT. DON'T MAKE WISECRACKS OR TRY TO BE FUNNY.
21. IF THE JUDGE INTERRUPTS YOU OR IF ONE OF THE LAWYERS MAKES AND OBJECTION, STOP ANSWERING IMMEDIATELY. WAIT UNTIL THE JUDGE SAYS THAT IT IS OKAY FOR YOU TO ANSWER. IF THE JUDGE DOESN'T SAY ANYTHING OR AND YOU DON'T KNOW IF YOU ARE SUPPOSED TO ANSWER, ASK THE JUDGE "YOUR HONOR, AM I SUPPOSED TO ANSWER THE QUESTION?" IF YOU DON'T REMEMBER THE QUESTION AFTER THE OBJECTION OR DON'T UNDERSTAND IT, ASK THE LAWYER TO REPEAT IT.
22. BEFORE YOU EVER COME TO COURT, THINK ABOUT WHAT YOU PERSONALLY KNOW ABOUT THE FACTS OF THE CASE. IF YOUR MEMORY IS HAZY, TELL THE LAWYER WHO IS GOING TO CALL YOU AS A WITNESS. IN PREPARATION FOR YOUR TESTIMONY, YOU MAY NEED TO REVIEW ANY WRITTEN WITNESS STATEMENT(S) THAT YOU MAY HAVE MADE AND/OR ANY OTHER DOCUMENTS THAT THE LAWYER ASKS YOU TO LOOK AT. DON'T HESITATE TO ASK TO LOOK AT ANYTHING THAT MIGHT HELP REFRESH YOUR MEMORY IF THERE IS ANYTHING IN YOUR WRITTEN STATEMENTS OR THE OTHER DOCUMENTS THAT IS WRONG OR A MISSTATEMENT, BE SURE TO CALL IT TO THE LAWYER'S ATTENTION BEFORE YOU TESTIFY.
23. YOU WILL WANT TO TELL EVERYTHING YOU KNOW IN CLEAR UNDERSTANDABLE LANGUAGE. MAKE EYE CONTACT WITH THE LAWYER AND THE JURY. DON'T LOOK DOWN AT YOUR FEET AND MUMBLE. THE COURT REPORTER HAS TO HEAR YOUR ANSWER. DON'T ANSWER WITH A SHAKE OR NOD OF YOUR HEAD. SPEAK YOUR ANSWER. DON'T SAY "YEAH" OR "UH-HUH." SAY "YES" OR "YES, SIR" OR "YES, MAAM.".OR "NO" OR "NO, SIR" OR "NO, MAAM."
24. DON'T OBJECT TO ANSWERING A QUESTION, EVEN IF YOU THINK IT IS IMPROPER. IF IT'S NOT A PROPER QUESTION ONE OF THE LAWYERS WILL OBJECT TO IT.
25. NEVER LOOK AT ME OR THE JUDGE FOR HELP IN ANSWERING A QUESTION. IF YOU LOOK AT ME BEFORE ANSWERING A QUESTION, IT MAKES IT LOOK LIKE YOU WANT TO BE "COACHED" TO GIVE A PARTICULAR ANSWER.
26. DON'T TRY TO FILL IN MOMENTS OF SILENCE. IF THINGS GO SILENT DURING QUESTIONING, DON'T VOLUNTEER INFORMATION SIMPLY TO FILL THE QUIET TIME.
FOLLOW THESE SUGGESTIONS. THINK ABOUT YOUR TESTIMONY AHEAD OF TIME, AND YOU WILL BE A GOOD WITNESS.
[Query to members of Professor Moses' Criminal Trial Advocacy (CTA) class and other readers: Concerning the above "Advice On Being a Witness," is some of it bad advice? If some or all of it is good advice, would you give your witness a written copy of the good advice to study before testifying? If so, do the rules of evidence of your jurisdiction, e.g., FRE 612 (Writing Used to Refresh Memory - before testifying), TRE 612 (Writing Used to Refresh Recollection - before testifying), permit opposing counsel to obtain trial discovery of your written "Advice On Being a Witness" handout during cross-examination of your witness, on the ground that the witness used the advice sheet to prepare for his testimony before taking the stand? If so, you may want to deliver this advice orally and forget using the written handout.]