By Joseph E. Badger
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Authorís note: Originally
published in the Accident Reconstruction Journal under the title "So You Want
to Testify," July/August 1991. Revised and presented here with permission of
the author. Although written primarily for law enforcement personnel, the principles
apply to engineers or anyone else who must testify in a civil or criminal trial.
During your recruit
school or police academy training, you probably had someone from your agency's
Legal Department give a lecture on Court Room Procedure. Perhaps an attorney,
local prosecutor or judge explained what you should and should not do while
testifying in court.
was training you for something with which you were unfamiliar and it may still
be new to you. Some officers rarely have to go to court, others may climb onto
the witness chair only a few times during their career.
Half way through
my twenty years with the Indiana State Police, I became the state's first officially-designated,
full-time Accident Reconstructionist and eventually discovered a significant
percentage of my time would be spent in a court room. Before getting into accident
reconstruction, I scarcely saw the inside of a courtroom except for a few arraignments
and a trial now and then. Years ago, when the Justice of the Peace system prevailed,
most misdemeanor cases were handled in a tiny office in a J.P.'s home. For major
crimes, much of my time was spent in some courthouse anteroom or hallway and
when I eventually took the stand, it was for only a few minutes.
1978, I've testified and given opinion testimony as an accident reconstructionist
133 times in some 52 different counties and in more than 95 separate courts.
Being on the witness stand for hours at a time and watching others testify has
given me insight into some of the problems you may encounter.
may have special policies or guidelines governing your appearance in court.
Those policies may require the wearing of your uniform. Most prosecutors want
you in uniform (gives an air of authority) but some Federal judges won't permit
you to wear a sidearm or weapon and you might feel naked being in uniform without
it. (The idea the judge has is that the defendant could claim he or she felt
intimidated by the uniform, especially if there are several officers present.)
If you ARE in
uniform, make sure it's a fresh one and that the brass is highly polished and
that your shoes are shined. That probably goes without saying, but I've seen
some officers who were an embarrassment to their agency.
Most "plain clothes"
detectives should wear clothes that are indeed plain. Don't wear "loud" jackets
or plaid ties with strange colors. Whether you are a police officer, civilian,
a doctor, consultant, nurse, welder or teacher, dress as dignified as possible.
Dark or medium browns, grays, or blues are acceptable. Look professional. Even
if you are a truck mechanic or salvage yard operator, wear neat, clean clothes.
WITH YOUR SURROUNDINGS
For most trials,
there is a separation of witnesses. This means you have to wait outside the
courtroom until you are called and you shall not discuss your testimony with
other witnesses. Remember, the first impression the judge and jury will have
of you is when you are called to the witness stand. You will be sworn in, then
allowed to be seated.
As you enter
the court room, walk briskly and with purpose. You should have familiarized
yourself with the layout of the court room ahead of time. Before trial, ask
the prosecutor or, in a civil matter, the attorney who sent you the subpoena,
where the judge prefers you enter the court room and where he or she wants you
to stand for the swearing in.
at attention! Look Sharp! Do not appear as though you have just gotten off night
patrol (even though you probably did), and don't give the impression you'd rather
be someplace else and that you wish this was over. If you're like me, you are
positive the attorney checked your schedule before setting the trial date just
so he could make you appear on your day off. (Chances are, if you fail to appear,
the case could be dismissed.)
If you wear glasses, avoid wearing the type with tinted lenses. Unless
absolutely necessary, do not wear sun glasses. If you must wear prescription
sun glasses, put forth an effort to keep them nearby and have the prosecutor
refer to special glasses you are required to wear. THEN, put them on. Some people
are unnerved when talking with or listening to others wearing dark glasses.
People like to see your eyes as you speak. If they can't see your eyes, they
may feel you have something to hide. Sunglasses can give you a "gangsta" appearance.
Be comfortable, but do NOT slouch. Even if you have to sit for hours
in a most uncomfortable witness chair, don't give the appearance of being ill
at ease. You'll probably be nervous, especially at first. If your hands shake,
don't worry about it. It's normal to be nervous. Being on the witness stand
is like being on stage. Having the jitters is okay; you'll get over it in a
few minutes. Generally, there is a ledge around the witness box, and if handed
a document or photograph to examine and you still have the "shakes" merely place
the item on the ledge and keep your hands out of sight.
PRESENTING YOUR TESTIMONY
In the case of a jury trial, you are there to assist
the jury in making a decision. Talk to them. Don't talk down to them. If you
have to get into a technical area, don't automatically assume the members of
the jury haven't a clue what you're talking about. If your vocabulary is escaping
the jury, the attorney should ask you to explain it in more simple terms.
As you are being asked a question, look at the person doing the talking,
then pause a moment (this pause will be explained in a moment), and give your
answer TO the jury. As you give your answer, maintain eye contact with each
juror. Tell the truth! You've learned through experience to tell when someone
is lying to you just by looking into their eyes and by observing body language.
Let the jury know you are indeed telling the truth; let them read it in your
Now, about the pause: Some lawyers like to object a lot. An objection
is valid especially if you are answering outside the scope of the question.
Frequently, counsel puts on a performance for his client. Often, making an objection
is merely a tactic. The attorney may know the objection will be overruled, but
there is always that chance one will slip through. As we've all heard, they
seem to teach law students in Circumvention of Law 101 that if you can't attack
the evidence, attack the witness. So pause briefly after a question to allow
the other attorney a chance to object. It is possible you could actually bring
about a mistrial by blurting out an answer. If you have started an answer and
someone makes an objection, stop immediately, even if in mid-syllable.
Some learned counselors haven't learned to stay away from convoluted
questions. If the question seems to have several questions within it, ask the
attorney to rephrase or simplify the question. If you don't understand the question,
say so. If you didn't understand it, the jury probably didn't either. If you
don't know the answer, say you don't know. Don't try to say what you think the
attorney wants you to say. Let me repeat: If you don't know, say so. If you've
forgotten something you knew at one time, say you don't recall.
If, during your testimony, something refreshes your memory and
you recall an answer, say so. Should you inadvertently answer a question incorrectly
and later realize you made a mistake, say so. It is no sin to admit an error.
We all make them. Also, when asked a question, answer only that question. Pay
attention now: Do not volunteer other answers or information. As you speak,
keep in mind that your testimony must be heard by the jurors, the attorneys,
the judge, and the court reporter. The reporter must make a record of everything
said. This record may be transcribed later. A lot of us talk with our hands,
but the court reporter cannot transcribe a gesture. You may read some trial
or deposition testimony where the reporter writes: "Witness nods," or "Witness
shakes his head." It is preferable if you say "Yes" or "No."
If you have been on the stand for a long period of time and Nature
calls, it is permissible to request a break. You may address the court with
a phrase such as, "Your Honor, could we take a short break?" You may wish to
say something to the attorney rather than the judge. If you have been testifying
for a long period of time and need a drink of water, you might catch the eye
of the prosecutor or, in a civil case, the attorney that called you and pantomime
bringing a glass up to your mouth. If that doesn't work, simply state your mouth
is quite dry and you need a drink of water. Occasionally, an attorney will try
to make you mad or cause you to "lose your cool." Restrain yourself. I've had
attorneys slam books on the table, shout, and pound his fists. The trick is
to remain calm, consider the source, and then ask him to repeat the question.
Many lawyers lose cases merely because the jury sees them as mean ol' rich attorneys
picking on the poor innocent policeman. Do not argue with the attorney. You
are supposed to answer questions, not get into a debate. If you keep it up,
you may be admonished by the judge to "simply answer the question." If asked
a "Have-you-stopped-beating-your-wife?" question, answer by merely stating you
cannot answer the question as asked, or request the question be rephrased.
One thing adversary attorneys like to do is cross you up. If he
or she has found an inconsistency in your testimony, look out. That inconsistency
will be jumped on, picked at, and dissected. The best way to prevent inconsistencies
in the first place is to tell the truth, the whole truth, and nothing but the
truth. Don't exaggerate the truth, just tell it like it is.)
For instance, accident reconstruction is gathering all manner
of evidence - circumstantial, hearsay, physical - and piecing it together to
get the facts. You are seeking the truth. As an impartial, unbiased investigator,
you should not even care HOW it comes out. Let the chips fall where they may.
Don't try to twist facts around to fit a foregone conclusion. Take the evidence
for what it is and based on your training, education and experience, state your
best conclusion. Don't fabricate evidence or assume things not in evidence.
The adage "Honesty is the best policy" is never more applicable than as a witness
in court. You'll never have to worry about perjuring yourself or getting out
of a corner if you stick with the truth.
IT'S NOT OVER TILL IT'S OVER
If you have to get back to work following your testimony or if
you merely want to leave, I find it helpful when I'm told "You may step down,"
to ask the judge, "Am I excused?" At this point, the judge will usually ask
both sides if either has further need of your services. Unless one side or the
other wants to use you on Redirect, Re-cross or Rebuttal, you'll be excused
and allowed to leave. Once you finish your testimony, leave the courtroom unless
you have been instructed otherwise. Customarily, the court permits the prosecutor
to have an officer (usually the initial investigator) remain with him throughout
the trial. If this is the case, you will be advised ahead of time that you may
return to the prosecutor's table. If you are unsure, ask.
Remember, the members of the jury are human. It doesn't hurt for
them to know you are merely mortal, too
Reprinted with permission from James Harris.