Contrary to popular belief, witness testimony is evidence and it can form the basis, if believed, of proof beyond a reasonable doubt to convict the accused. In fact, witness testimony comprises approximately 99% of the evidence presented in any given trial in any given day in any given courtroom in our country. How the witness testifies on the stand is largely important to how the jury most likely will receive that testimony. Do a good job while testifying and there is a higher likelihood that the jury will believe you; do poorly for whatever reason, and there is a substantial risk that you won’t be believed. It is really that simple. If you don’t believe me, ask Judge Brett Kavanaugh. A series of recent polls show that many Americas are having a tough time with the presentation of his testimony and believing him based on his testimony. On the other hand, Dr. Blassey Ford's testimony seemed so much more credible. Why?
Supreme Court nominee Brett Kavanaugh (left) and Christine Blasey Ford, testified before the Senate Judiciary Committee Thursday. | Jim Bourg and Saul Loeb, distributed by the Associated Press
Putting politics aside because this is not about politics and any potential interest in the outcome of the hearing and just focus on the testimony in general, most casual observers would agree that Judge Kavanaugh did very poorly in his most recent testimony before the senate committee and Dr. Blassey Ford did far better. For an extremely intelligent individual, the judge was unnecessarily angry and evasive. He was unnecessarily combative and standoffish. He was pompous and condescending. It was difficult to watch at times. He even had to apologize to a senator after hearing because he behavior was abhorrent. How one says what they need to say in a criminal courtroom is as important as what the witness has to say in general. With a little better preparation, he might have been able to keep it all together. Again, on the other hand, Dr. Blassey Ford was open and honest and authentic throughout the entire difficult ordeal. And it showed, but this wasn't court.
As I indicated earlier, testifying is important. And sometimes, testifying could be a matter of life or death in a criminal case. It could mean the difference between walking out the backdoor of the courtroom in handcuffs versus going out the front door with your family to go home to enjoy your life. And it all starts with witness preparation and practice.
Preparing a witness to testify is a sign of a good trial attorney. Many so-called trial attorneys have no idea how to prepare a witness to testify and do their clients a complete disservice by not.
Although it is easy to learn the basic rules for testifying, it takes many years to master this skill. I have prepared hundreds of witnesses to take the stand throughout my career. Some did better than others, but everyone who abided by what I told them did markedly better than the rest. Although I cannot tell a witness what to say, I can help them understand the framework of how the testimony will be presented so that they can better perform on the stand. Through the preparation process, I help them understand how to testify so that they can better present their testimony.
Many of the guidelines I go over might seem like commonsense but are anything but. I typically like to go over, practice, and work with clients at least a couple of times with their testimony to ensure that the client understands the perimeters of testifying. This is done to give the witness a good opportunity to testify effectively to present their information and message on direct or re-direct examination. The guidelines also prepare the witness to be cross-examined by the prosecutor. Better to make a mistake in this atmosphere than on the stand.
In a trial, the presentation of the evidence is done by who is presenting their case-in-chief. In a prosecution, the government goes first, presents all the witnesses it believes are necessary to establish its case, and then it rests. After the government has rested, the defense can put on a case. If the defense puts on a case, the defense calls all the witnesses it believes are necessary to either refute the government’s case or establish an affirmative defense, and then it rests.
When a witness is called by prosecution or the defense, the witness is sworn to the truth and then provides testimony. This is known as direct examination. The witness can also provide limited, additional testimony on re-direct after the cross-examination. After the witness has testified on direct examination, the opponent gets to cross-examine the witness. Cross examination has been described as “greatest legal engine ever invented for the discovery of truth.”[i]
The difference between direct/re-direct examinations and cross-examination is the type of questions that the examiner may ask. On direct examination, the examiner may not ask leading questions or questions that suggest the answer and can only ask open-ended questions. Typically, on direct examination, the examiner asks the “who?” “what?” “where?” “when?” “why?” and “how?” The questions are often slightly fancier than the blandness described above, but traditionally sticks to the basics.
On cross-examination, the format for the questioning changes to the leading question. Whereas the direct examiner could ask, what did you eat for dinner last night? The cross-examiner can ask, you ate a steak last night, didn’t you? The point being the open-ended direct question can be answered however the witness wants; the other question tells the witness what the examiner believes the answer should be and the witness can agree or disagree. Frankly, extremely skilled cross-examiners can essentially testify to the jury as they ask the questions of the witness.[ii]
As I prepare the witness to testify, I want to make sure that the witness understands that question and answer, the back and forth, needs to include the jury. After all, the jurors are the most important people in the courtroom during a trial because they are deciding whom to believe. I strongly suggest that any witness figure out where the jury will be seated and angle the witness seat to face the jury. Keep in mind, speaking to the jury is crucial and often overlooked by many attorneys.
Think about if from the jury’s point of view for a second. If the question and answer between the witness on the stand and the attorney at the podium simply goes back-and-forth between the two, the jury is reduced to a mere, and potentially disinterested, spectator. On the other hand, tilting the witness seat the face and speak directly to jury, you involve the jury. This simple act empowers the jury to be an active part of the examination (provided you maintain this configuration throughout the examination). The jurors feel like they are participating.
During trial, I want the witness to sit facing the jury and not looking at me, but at them. I already have a good idea about what the witness’s testimony is going to be, but the jury doesn’t, and I want to include them throughout this process. Before the question is asked, I want the witness to look over to me or the examiner for the question. After the question is asked, I want the witness to return and face the jury to provide the answer. This is done for both direct and cross-examination. Many experienced detectives and medical professions do this when testifying. It is effective.
If you are going to be a witness, there are some things you should consider.[iii] First, make sure you understand the question before you answer it. There is no shame in asking for some type of clarification if you do not understand the question.
Do not allow the examiner to force you into answer only a “yes” or “no” to a question that requires more explanation. A witness is free to answer any question with any answer. There is not set directive that requires a witness to answer “yes” or “no.” The example that I have used is the following: The question to the witness is “have you ever been to Chicago?” And let’s say for the purpose of this question that you were on a flight from New York to Los Angles and the plane landed at Midway Airport in Chicago. While the plane landed to refuel, you did not get off the plane. Other than landing at Midway Airport, you have never otherwise been to the Chicago area. Back to the question, “yes or no, have you have been to Chicago?” The answer could be “yes” or “no.” I would suggest that you could offer the following explanation, “I can’t answer that question with a ‘yes’ or ‘no,’ because the only time I have ever been to Chicago, I was on a plane that landed at Midway Airport to refuel and I didn’t get off the plane. So, I am not sure how to answer your question.”
During your questioning, do not volunteer information. The jurors are not interested in how smart you may think you are. Simply, answer the question asked and nothing more. Don’t overthink the answer. If the examiner wants to know something specific, let the examiner ask for that specific information. In other words, focus on the question and try not to outthink or outsmart the questioner. If you do, then I promise it will look bad.
Also, do not feel the need to fill any silent pauses with mindless small talk. There may be times were the examiner is reading something or formulating a question. Do not take those moments to blurt out something. Remember, a wise person has something to say; a fool needs to say something. Don’t be foolish.
While on the stand, do not ramble. Simply answer the question asked as direct and succinct as possible. This also means stick to the topic of the question. No tangents. No unnecessary explanations. If the question asks what color your car is, the examiner does not want to know if you own a cat or that you ate too much for diner or anything else. Additionally, do not be evasive, snarky, sarcastic, or cute in your answer. None of these types of answers are helpful while you are providing testimony.
Always be polite in your answers. “Yes, sir.” “No, ma’am.” “Yes, Your Honor,” “No, judge.” No matter what happens, do not argue with the examiner. It will always look bad and you will always lose. As a witness, you always have to be respectful. You must even if the examiner is purposefully pushing your buttons, attempting to provoke you, or is being downright disrespectful.[iv] Never forget, the jury is watching. During your testimony, you must do your best to maintain eye contact with the members of the jury. The members of the jury are the most important people in the room. You must also speak clearly and loud enough for each of the jurors to hear you.
While on the stand, if you get caught in an apparent inconsistent statement. For instance, one direct examination, you said the light was green, but previous you said to other witnesses that the light was red, and you are now confronted with the inconsistent statement. If you can explain the difference in testimony, then great. If you cannot, then do not attempt to make up an answer, simply move on best you can.
If you have any prior felony convictions or misdemeanor crimes of dishonesty, you will need to admit to the priors, but do not sound proud of them. There are rules to how prior convictions can be used at trial and smart trial attorneys ensure that any witnesses that they prepare understand how to answer prior conviction questions.
Likewise, if there is any specific evidence that needs to be introduced through your testimony, your attorney should review the necessary predicate or foundational questions. Foundational questions usually establish the basis of knowledge or authenticity of something that the examiner wants to get admitted into evidence. For instance, there may be a series of questions concerning whether a photograph “fairly and accurately” reflects whatever is in the photograph.
Again, do not let the prosecutor intimidate, annoy, or harass you. Don’t forget, the jury is watching. If the prosecutor attacks you, you must stay “cool” and maintain a certain decorum. Obviously, you are entitled to show some emotion, but experience has shown that maintaining your composure and cool usually result in a more favorable outcome in those instances.
If on cross-examination, you get “beat up,” understand that you will get an opportunity on re-direct examination to clean up any matters than need more explanation. Re-direct is limited in scope to what was covered on cross-examination. For instance, some of the cross did not allow you to fully explain your answers because of the leading nature of the questions. During this time, if your attorney requests, you may be allowed to fully explain a partially answered question.
During the questioning, there may be objections that need to be addressed. An objection signals to the judge that an attorney believes that there is something improper about a question or a topic. These matters are purely legal matters. To those objections, the judge might say “overruled” or “sustained.” You need to have a basic understanding in this regard. If the objection is sustained, then you won’t be allowed to answer that question and the examiner will move on to a new question or topic; if the objection is overruled, then you will be allowed to answer the question asked. If you don’t remember the question, you can ask that the question is re-asked.
Lastly, 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. Paying attention to your appearance and presentation style can make a huge difference in whether you are believed or not. Dress reasonably, like you are going to a job interview or a nice restaurant. And be as authentic as you can be working within the above framework.
If you or a loved one has to testify in court or have any Florida criminal matter that you want reviewed, then do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 for a review of the situation. The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. 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. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
[i] 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. 1974).
[ii] Cross-examination may look easy, but it takes practice. It is a skill that takes a lifetime to learn and master. A good cross-examiner will appear to glide from topic to topic, point to point, as the examiner attempts to discredit a witness for whatever reason (the witness is biased or prejudiced …etc.). A bad cross-examination of an important witness can be detrimental and could cost the client the case. At the very least, a terrible cross-examination will negatively affect the outcome of the case.
[iii] Over my years of experience, I picked up a list of these “rules for testifying” from a J. Kenneth Littman, a colleague at the public defender’s office in Tampa. He was a trial attorney handling only major crimes for over 30 or so years. His experience ranged from that of an assistant district attorney in New York City prosecuting cases to that of an assistant public defender in Tampa and on the East Coast of Florida handling major crimes.
[iv] If the examiner is being unprofessional, argumentative, or is asking something inappropriate, then the responsibility falls on either the court or your attorney to step in and make the proper objection or motion. Do not take it upon yourself to be your own counsel.