Original concept by:
Special Agent Dick Searl
Iowa Division of Criminal Investigation
Criminalist Jerry L. Brown
Criminalist Doug Elrick
Iowa Division of Criminal Investigation
I. PURPOSE, PHILOSOPHY AND OBJECTIVES.
The basic purpose of using sworn testimony is to assure that the information being provided is truthful and as correct as is possible. The objective of the witness should be to provide information in a manner that is objective, fair, accurate, and complete. If this is done the examiner will have performed a vital part of his/her job. The Rules of Criminal Procedure and Rules of Evidence by which our courts function can at times seem to be a hindrance, but the examiner should not loose sight of the fact that the rules have been developed over a long period of time and are in place to assure both sides a fair trial. The examiner’s role as a witness is essential in most situations. The credibility of the examiner can make or break many cases; therefore, how the examiner testifies is extremely important. When the testimony is complete, the parties involved should appreciate the honesty and professionalism the examiner has displayed.
It is common for a witness to become nervous about testifying, and the expert witness is no exception. It is also common for a witness to feel that the defense attorney is attacking on a personal basis. The best method to overcome these feelings is to understand the system as much as possible, be as thoroughly prepared as possible, and tell the truth. Providing sworn testimony is a solemn and serious situation and should never be taken lightly. There can be very serious ramification if the rules and law are not followed; no case is worth breaking these rules.
II. SETTINGS REQUIRING SWORN TESTIMONY.
The affidavit is a written statement made or taken under oath before an officer of the court or a notary public or other person who has been authorized. The affidavit sets out knowledge that the affiant (person who signs the affidavit) believes to be correct. This information is used in many instances to support a request, such as the probable cause used to support the request for issuance of a Search Warrant or some other type of court order.
Often an attorney (or peace officer) will have prepared the affidavit and the officer/examiner will be asked to sign and swear to the affidavit. If this is the case, the officer/examiner should take the time to review in detail the content of the affidavit as the officer/examiner, not the attorney, will be held accountable for the statement. If the information contained in the affidavit is not firsthand knowledge of the officer/examiner, but rather information provided to the officer/examiner, the source of the information should be noted in the affidavit. The exception to this would be for confidential informants who provide information. They should be described in terms that allow a Judge to make a finding of credibility of the informant without having to identify him or her.
The Court will often hold Hearings to provide an opportunity for issues to be presented on which the Court is being asked to rule. Hearings are conducted before the Judge and both sides are provided an opportunity to present testimony and other evidence for the Court to consider. During these Hearings, both sides are allowed to examine the witness giving the Sworn Testimony. Examples of Hearings in which witnesses will be most often involved are: Preliminary Hearings, Suppression Hearings, Forfeiture Hearings, and Sentencing Hearings.
Depositions are a method of pre-trial discovery, which provides the defense an opportunity to examine the States’ witnesses under oath concerning the witness’s knowledge of the case and what the witness will likely testify to at trial. These depositions are often held in informal settings in comparison to a courtroom. The examiner giving testimony for a deposition should not forget that there is a record being made which can be used later. Deposition testimony is just as important as trial testimony.
D. Grand Jury
A Grand Jury is a body of lay people empowered to investigate possible criminal situations and to accuse individuals of crimes when the Grand Jury has determined that sufficient evidence exists to warrant a trial. The Grand Jury will hear sworn testimony from witnesses and review other types of evidence in making the decision on issuing an indictment. Sworn Testimony provided the Grand Jury is made available to the defense and can be used later if an indictment is returned.
Criminal cases are commonly resolved by trials where both the state and the defense have an opportunity to present sworn testimony and offer evidence. Trials can be to a jury or the bench (Judge). This will make some difference in the manner in which the trial proceeds and should be discussed with the prosecutor. Trials are conducted according to the Rules of Criminal Procedure and the Rules of Evidence, in the most simple of terms these rules determine how information is presented and what material is allowed. The presentation of inadmissible or improper evidence can result in serious problems, therefore, the examiner testifying at a trial must be aware of the rules which may apply to his/her testimony.
III. PREPARING TO PROVIDE SWORN TESTIMONY.
A. When to begin
The witness should begin his/her preparation as soon as notified to respond to a situation. Detailed notes should have been prepared during every phase of the investigation and used to prepare a detailed report. The experienced examiner will anticipate and recognize events as they occur which are certain to be important. In reality not every single detail will be documented in the report, but the more detailed the report the more likely the report will aid in the later recall of information that may become vital. The examiner’s notes and recall should be expanded in the written report, not condensed.
B. Initial Discussion with the Prosecutor
Under ideal circumstances, the examiner will be able to discuss the investigation with the prosecutor while the investigation is in progress, but this is not always possible. At the first available opportunity the examiner should meet with the prosecutor to apprise him/her of the case and learn if there are other factors which should be investigated. All concerns should be addressed at this initial meeting and then followed-up. In some states no one can discuss their testimony with anyone once the trial begins and all the witnesses are sworn in.
C. Assembling Materials
It is the examiner’s responsibility to put together all information and items which may have importance to the case. This includes a detailed comprehensive report and at least a listing of all evidence the examiner is aware of from his/her examination. It is far better to provide more than is needed than to leave something out. Let the prosecutor decide what is needed and what is not. The more informed the prosecutor is the better prepared he/she will be for trial.
D. Review of Materials with Prosecutor
After all material has been prepared, it should be provided to the prosecutor and he/she should be given time to review the material. The examiner should then insist on meeting with the prosecutor to review and discuss all the facts and aspects of the case. Make sure that the prosecutor knows everything including any facts, observation, or actions (pro and con) which may not be in your report. If the examiner is aware of or has a concern about any facet of the case, it should be discussed. Quite often, a potential problem can be effectively dealt with if there is time to prepare.
E. Consideration of Physical Evidence
All pieces of evidence, which the examiner has knowledge of, should be discussed with the prosecutor. Make sure you both understand what you can and cannot say about the item of evidence. This would include a review of the chain of custody for every piece of evidence. Many times a piece of evidence can be used by both sides; the examiner and prosecutor should discuss how the defense might attempt to interpret the significance of the item. An often-overlooked part of the physical evidence is the scene itself. Even if there are detailed photographs, the examiner and the prosecutor should visit the scene together to make sure each has an accurate understanding.
F. Understanding the Prosecution Theory
All cases have a theme or theory, which must be developed to explain disputed and undisputed facts and then used mainly to facilitate the jury understanding the case. The examiner should have a basic understanding of the theory of the case. The tactics and strategy used to develop this theory during trial can be as important as the testimony and evidence presented. Although the prosecutor may want you to say certain things a certain way, at no time should the examiner’s facts or opinions be distorted or slanted to fit any theory. The examiner should testify as an aloof party, just presenting the information known to him/her.
G. Continued Discussion with the Prosecutor
Every case changes from the time the investigation begins until the case is submitted to the jury. Certain areas develop during discovery as the prosecution learns what the defense strategy and theory will be at trial. The State’s case will change, and if the examiner does not maintain an open line of communication with the prosecutor, preventable problems can develop.
IV. APPEARANCE AND DEMEANOR.
A witness is a professional and his/her appearance should reflect this position. The first impression made can often be the most lasting. If the examiner is assigned to plainclothes duty or his/her assignment is in a civilian position, he/she should appear to provide testimony in a conservative business suit and tie, dress suit or dress skirt and plain blouse where appropriate. If the examiner is assigned to a uniform position and his/her department’s policy is that he/she should appear to provide testimony in uniform; the uniform should look the best it possibly can with every detail given proper attention. In most instances the witness’s weapon should not be taken into the courtroom if it or the holster are visible, but there are some rare exceptions. The object is not to impress the jury with your appearance, but with your professionalism. Studies have shown that while even the best attire will usually not result in significant overvaluation of testimony, poor or inappropriate attire can cause a person’s stature and abilities to be harshly devalued.
You should make yourself aware of the schedule for the trial, hearing, or deposition and know when and where you are to appear. If you are not familiar with the location, allow adequate time to facilitate your arrival at the time set by the prosecutor. It is far better to arrive thirty minutes early than three minutes late. You should also know where you are to wait before being called to testify. There are usually witness rooms where the prosecutor will want to meet with you prior to your entering the courtroom.
C. Entering the Courtroom and Oath
If possible you should visit the courtroom prior to your testimony to allow you to become familiar with the setting and any unique characteristics. Make sure you know where the counsel tables are located and where you will enter the courtroom. In most instances you will be asked to take the oath just prior to taking a seat in the witness box. Know before you enter the courtroom who will be swearing you in and where you should stand to be sworn in. Every courtroom has a slightly different arrangement and in some just entering the witness box can present a problem. It makes a great first impression if the examiner trips over the slight rise in the floor where the witness chair is located.
D. In the Witness Chair
When you take the witness stand and get seated you should appear relaxed even if you are nervous. Many witness chairs swivel, you should be aware of this from a previous visit to the courtroom. Your attention should be focused on the attorney asking the questions at the moment, and when answering important questions or making a point you should turn slightly toward the jury when giving your answer. If the witness turns on every question and answers, it can be distracting and appear staged.
E. Voice and Demeanor
The examiner/witness usually has trained himself/herself to use an authoritative voice; giving an air of confidence in your answers. Make sure you speak slowly and distinctly using proper voice inflection where appropriate. Avoid giving off “verbal static”, such as “uh” well”, “you know”, etc. These tend to leave the listener wondering if you really know what you are talking about. Never take the stand with gum or candy in your mouth. Be aware of your body language that should reflect the “comfort of the truth”. Some witnesses will take an open relaxed stance while being questioned by the prosecutor, but when being cross-examined they become rigid, sit back, cross their arms and scowl. The examiner’s demeanor should always remain the same: professional and relaxed. The witness should sit in the witness chair with both feet flat on the floor and hands relaxed in their lap or on the table or stand in front of them. You should never slouch in the witness chair or cross one leg over the other. Be relaxed but alert.
F. Departing the Stand
When your testimony is complete, the Judge will excuse the witness at which time you should leave the courtroom without discussion with the prosecutor or others. After you have completed your testimony, there is a natural inclination to discuss how you perceived the situation. This discussion should not take place in public. It is usually a good idea for the examiner not to remain in the courtroom after completion of his/her testimony, as it can give the impression that you are too interested in the outcome. Examiners should also keep in mind that there might be jurors, reporters, or other witnesses in the areas outside the courtroom. The examiner should also avoid making comments or gestures that might be seen or heard by others interested in the case.
V. TESTIFYING AT A DEPOSITION.
As stated previously, depositions are a method of pre-trial discovery that provides the defense an opportunity to examine the State’s witnesses under oath concerning the witnesses’ knowledge of the case and what the witnesses will likely testify to at trial. In short, they are a learning experience. Keep in mind that both sides learn during a deposition. The prosecutor will be present and will take note of the areas and type of inquiries being made, which will allow for adjustment of the State’s case. The examiner being deposed has the chance to see how the defense poses questions and get some idea of what the cross examination may be at trial.
There are other purposes for the defense taking an examiner’s deposition. The defense will be looking for evidence that might help the defendant. The defense attorney is getting your testimony on record, which he may attempt to use to impeach your trial testimony with by bringing out inconsistent points. The attorney may be looking for ways to discredit other examiners or other witnesses with information you provide.
B. Who asks the Questions
In most instances the defense attorney will be the only one asking questions. The prosecutor may object to certain areas or types of questions, but will probably not ask any questions of the witness. The prosecutor can talk with the witness outside the deposition setting. Occasionally, prosecutors may ask questions intended to clarify points so that they do not appear to be inconsistent with other testimony in the case.
C. Listen – and Answer only what is Asked
The Examiner should never answer a question unless he/she fully understands what is being asked. Make sure you hear the entire question. The last word may change the entire meaning of the question. Some attorneys develop a habit of letting their voice drop off at the end of the sentence. On occasion the attorney may ask a question with several parts to it or one that is simply unintelligible. If any of these situations arise simply ask that the question be repeated or state that you do not understand the question and ask that it be rephrased. Under no circumstance should you guess at what is being asked and attempt to answer on the basis of what you think the attorney may have been trying to ask.
A lot of problems can be avoided if the witness will get in the habit of pausing at the conclusion of the question, gathering his/her thoughts on the question, determining what the appropriate answer is and then speaking. If the question can be answered with simply a “yes” or “no” it should be. Keep in mind that this is a learning situation for the defense: the more you talk, the more the defense learns. However, there may be certain situations in which educating the defense during a deposition will result in a guilty plea. So you must weigh your options in each case.
D. Do not Volunteer or Educate
Examiners have a tendency to try to answer questions about their cases when talking to other examiners or prosecutors. This is one way they learn about their work. The deposition is not the place to let this habit prevail. The defense attorney has undoubtedly heard his client’s views on this situation and they may be incorrect. The defense attorney may believe he knows proper police procedure or he may think he is a forensic expert. If the defense attorney uses information incorrectly the witness should not go along with it, but rather simply state that it is not correct. This may lead to further questions, but you might be surprised at how many times the defense attorney will simply go on to something else. It is not a good idea for the examiner to volunteer information. If the defense attorney asks if you observed a particular item and you respond by stating, “No, that was Examiner Jones who saw that.” A simple “no” would have been sufficient, but the volunteered answer guaranteed that Examiner Jones would now be deposed.
E. Facts and Opinions
There are certain things that the examiner knows about the case, but there are undoubtedly aspects of the case that the examiner knows nothing about. Just because a question is asked does not mean the witness has an answer. If the examiner does not know the answer there is no harm in saying, “I do not know.” Your testimony should be limited to what you know and the facts, as you understand them.
In some instances you may be asked for your opinion regarding your examination in the office/lab or observations at the crime scene. Usually by the time you are asked your opinion, your qualifications and actions prior to arriving at an opinion will have been laid as a foundation by the prosecution. If the foundation has not been properly laid, expect an objection to your giving your opinion.
F. Avoid Overly Familiar Relationship
As stated previously, depositions are often taken in surroundings much less formal than a courtroom. The attorneys sometimes remove their coats, have coffee during the deposition, move around the room, and engage in casual conversation during breaks. Do not be misled. The importance of the deposition cannot be overstated and the attorneys are serious about what is taking place.
Some defense attorneys will attempt to play to the witness in order to gain an advantage. He may be overly friendly and casual as though the deposition is of little importance. He may offer coffee, encourage you by compliments, or act as though he has been put in this awkward position of being the defense attorney when he started his career out as a prosecutor. If the examiner drops his/her guard he/she may well pay for the mistake at trial. Remember, you are a professional in a legal setting, maintain your professional demeanor throughout the deposition.
G. Use Favorable Terminology
The defense attorney will phrase his questions, using the terms or phrases he feels are best for his purpose. The examiner responding to those questions does not have to use those same terms of phrases in giving his answer. Some common examples would be: “looked at” vs. “processed”, “viewed” vs “examined”, and “some things” vs “specific items”. If the examiner accepts the defense phrases or terminology during depositions, it will be difficult to use the preferred prosecution terminology at the time of trial.
H. Do not become Angry or Confrontational
Occasionally a defense attorney will purposefully take emotional potshots at a witness in hopes of provoking the witness into getting angry and making statements without thinking. If the witness does not lose track of the purpose of the deposition and instead recognizes what is taking place, he/she should be able to avoid getting angry.
The examiner is undoubtedly going to be confronted with misinformation and allegations of wrongdoing. In these situations the examiner should avoid confronting the attorney. The attorney has probably planned the scenario and knows exactly where he wants the confrontation to go. Be polite, be firm, and do not lose your temper. Reason and passion seldom co-exist.
I. Hearsay Situations
Since depositions are a discovery or learning opportunity for the defense, witnesses are often asked questions calling for hearsay responses. These can easily start out or turn into “fishing expeditions” and create additional work or they can turn into situations where the witness being deposed ends up testifying for a number of other witnesses, not always accurately. It is relatively easy for the defense attorney to use your hearsay testimony against other witnesses, creating a false impeachment situation. The prosecutor present for the deposition may well object to some of these lines of questions. If objections are made, take your lead from the objection, but understand that hearsay testimony is generally allowed in discovery depositions. This can be especially true if you were not the affiant on a search warrant, but played a part in the service of the warrant. You may be asked what you were told prior to serving the warrant and what part others played in the search and seizure activity. You may also be asked what you were told about the case when evidence is submitted to you for examination and what you were asked to do with the evidence.
The defense attorney may come revisit a topic late in the deposition that was covered earlier. This is usually an attempt to get the witness to relate the information in a slightly different light or to create a change in the witness’s own testimony. This type of situation requires patience on the part of the witness. Remember that the truth is easiest to remember. If the witness has made a mistake in previous testimony, do not hesitate to correct the mistake immediately.
K. Remember – You will Hear your Testimony Again
Depositions are usually taken before a Certified Shorthand Reporter and a transcript of the statement is then prepared. Your deposition may have been taken months before you are asked to testify at trial to the same information. The examiner should make arrangements to obtain or review the deposition transcript as soon as possible. If errors are discovered, they should be brought to the prosecutor’s attention immediately.
Occasionally, discovery depositions may be videotaped. These situations warrant the same type of preparation as trial testimony, since your appearance, demeanor, and voice quality might be presented to and considered by a Judge or jury in the future. Some examiners look at this situation as a problem, it should not be. If the examiner has prepared accurate comprehensive reports, given a detailed deposition, and then testifies to the same information at the trial it indicates truthfulness.
VI. TESTIFYING AT HEARINGS.
Hearings conducted before a Judge are issue specific in that the testimony and evidence presented pertains to the topic the Court is being asked to rule on. Different information is presented than may be allowed at a trial. For example, during a Suppression Hearing, the defense may be challenging the method by which certain portions of the probable cause were obtained or that the search went beyond the scope which the warrant authorized. In these situations testimony may center on why a certain computer was taken, or why all the floppy disks were removed or other issues about the search and seizure of items at the scene. In the case of the warrant that was issued for computer equipment and associated software, why did you search the filing cabinets, and desk drawers in the adjoining workroom. Testimony in many Hearings centers on the examiner justifying his actions. Testimony given in a hearing may be irrelevant or inadmissible at trial in some circumstances.
B. Types of Hearings
As stated previously, the types of Hearings examiners will be most often involved with are: Preliminary Hearings, Suppression Hearings, Forfeiture Hearings, and Sentencing Hearings. Each has a different purpose and each is held because the Court is being asked to make a ruling. This is the forum in which information is presented to the Court for consideration and upon which its ruling is based. It is important to keep in mind that the Court usually will not consider information that is not presented during the Hearing.
A Preliminary Hearing is conducted for the purpose of determining whether enough probable cause exists for the Court to order the subject held for trial. This requires the State to present testimony and evidence that indicates the elements of the crime are present and that the subject being held committed the acts. The examiner testifying at a Preliminary Hearing must know the elements of the crime and what information supports each, he/she must also be able to testify as to the information which indicates the subject being held is responsible for the acts.
A Suppression Hearing is held because the defense is asking the Court to rule that certain evidence should not be allowed. The basis for this request varies according to the facts and circumstances of each situation. The examiner testifying at a Suppression Hearing must be aware of which actions resulting in the seizure or confession is being challenged. They must also be able to justify their actions as being within the established rules of conduct as defined by previous Supreme Court rulings. Since each situation is different, it is absolutely essential that the examiner and prosecutor work in concert in preparing for these Hearings.
Examiners testifying at Preliminary Hearings and Suppression Hearings should be aware that the defense may attempt to use these situations as an additional opportunity to learn about the State’s case in preparing for a trial on a related issue.
A Forfeiture Hearing is held because the State is asking the Court to transfer ownership of property from a person to the State. This request is usually made because the State believes the property is illegal to possess, because the property has been used to facilitate the commission of a crime, or was acquired with the proceeds of a crime. In any of these situations the State will have to present testimony and other evidence to convince the Court of the State’s contention. The examiner asked to testify at a Forfeiture Hearing must be aware of the State’s theory and what knowledge of the situation he/she has that supports the theory. Here again, the examiner and the prosecutor must work in concert in preparing for this type of Hearing.
A Sentencing Hearing is held to allow the Court to consider information upon which to base a sentence of a subject convicted of a crime. There are many established factors the Court may consider in determining the appropriate sentence to be imposed. Generally both sides present testimony and evidence which pertains to these factors. In most cases, the prosecutor will explain the topic about which the examiner is going to testify. The examiner must be certain he/she understands each of these topics and the purpose for the testimony.
C. Observations and Impressions
During the course of these various hearings examiners will be asked to testify in detail about the events they witnessed during their investigation or what they found during their examination. Witnesses should learn to take note of items that may be important, their activities, and note activities of others. These observations, when related to the court during these hearings are important because they are used to “paint a picture” of situations. The more detailed the description, the more believable the testimony will be.
An examiner’s actions may be based on factors giving rise to an emergency situation, which are not always apparent to others. The courts refer to these factors as “exigent circumstances” and are willing to take them into consideration when being asked to make rulings. These actions may be based on what is found at a search and seizure location that was not previously known about before the planned raid. If a certain action was not taken in an expedient manner, then a delay could result in loss of evidence. In order for the court to take these factors into consideration, the examiner must be able to testify in detail about the factors and his/her consideration of them. This testimony should be reviewed in detail with the prosecutor prior to being presented; otherwise the court may disallow valuable evidence.
E. Hunches, (Experience)
Examiners many times take action based on what they refer to as “hunches”, but these are not acceptable explanations. What the examiner is really talking about is his/her assessment of a current situation based on past experiences. The examiner will be asked to explain his/her training, job assignments, years of service and other factors that form the bases of the examiner’s experience in order to demonstrate to the court that the examiner has an acceptable background. The examiner will be asked also to explain in detail the situation that existed at the time the examiner took the action being examined at the hearing. It is absolutely important that the examiner be able to explain during his/her testimony the bases for the “Hunch”.
VII. TESTIFYING AT TRIAL.
A. Direct Examination
This testimony is presented when the examiner is questioned by the prosecution as part of the State’s case. The purpose is to provide testimonial evidence that most likely supports the prosecution’s position. This testimony will center on observations, examinations, and activities of the examiner and in some cases, others activities. It may also include testifying about items of physical and demonstrative evidence. During direct examination the prosecutor will do the questioning.
The examiner should have discussed his/her proposed testimony in detail with the prosecutor who will be actually asking the questions at trial. They should have together reviewed all applicable reports, depositions and physical items of evidence with which the examiner will be concerned. During this time the examiner should provide the prosecutor with a set of qualifying questions as well as possible suggestions for introducing the evidence and subsequent examinations. The prosecutor should also have discussed areas of anticipated cross-examination and how the defense may try to handle those areas. If the prosecutor anticipates difficulties with certain areas of the examiner’s testimony, these should be discussed and alternative plans prepared to deal with the problem situations. In no case should the examiner’s observations, opinions, or findings be less than truthful. Sometimes your findings may not fit with the prosecutor’s theory and you may be asked to slant or make your testimony appear more favorable to the prosecution’s case. Do not do it. Your are sworn to tell the truth, not the truth as perceived by the prosecutor. Generally the prosecutor is not allowed to pose leading questions on direct examination, but with prior preparation the examiner will know exactly the response the prosecutor is expecting with each question. The examiner’s answer to the question must be responsive to the topic and presented with enough detail to convey the information so that the jury will be interested. The examiner should emphasize important points of his/her testimony. One method of emphasizing these important points is for the examiner to turn slightly toward the jury and provide the response as if talking directly to each member of the jury, but this should not be done on every answer or the effectiveness of the technique is lost.
Occasionally prosecutors will try to have experienced examiners testify in a narrative fashion. This is usually objected to by the defense as it allows little opportunity for objections. Usually the prosecutor will have discussed these situations with the examiner during preparation. If the prosecutor wants a narrative-type answer, he/she will usually ask a question to the effect, “And what did you do next?”
Examiners will at times make errors in their testimony. If the examiner realizes that an error has been made it should be corrected immediately. It is far better for the examiner to correct his/her own mistake than to have the defense attorney bring it out to the jury. This would include errors that are discovered in deposition testimony during preparation for trial testimony. These should be pointed out to the prosecutor so they can be dealt with in an effective manner at trial.
During direct examination the examiner will be asked to testify concerning various pieces of physical evidence. If it is anticipated that the examiner will be testifying about items of real evidence, he/she should examine the item during trial preparation with the prosecutor. The prosecutor should review with the examiner the foundation needed to qualify the examiner’s testimony concerning the item and exactly what testimony is needed about the item. At trial the item will be marked with an exhibit tag of some type for identification purposes. When the examiner is shown or handed an item of evidence at trial that the examiner should begin his testimony concerning the item by stating something to the effect, “Exhibit # 23 is a color photograph of the location of the computer as it was found in the upstairs northwest corner bedroom.” This identifies, for the record being made by the court reporter, exactly what exhibit the examiner is about to testify concerning.
Occasionally items of demonstrative evidence will be prepared for use at trial; these may be crime scene diagrams, maps, charts or the like. If the examiner is going to be asked to testify using this demonstrative evidence, he/she should become thoroughly familiar with these items during preparation for trial. Demonstrative evidence is very important, for it not only can be used as references during testimony, but go back to the jury room when the jury begins deliberation. In this way it can reinforce trial testimony during the deliberations.
There may be situations where the examiner may rely on what others say. This is hearsay information and is acceptable for investigative purposes. Hearsay is not usually allowed during trial, although there are exceptions. The most notable of these exceptions is statements made by the defendant. The examiner testifying needs to understand the hearsay rules and avoid providing testimony in such a fashion that allows the defense to raise a hearsay objection. These situations should be discussed with the prosecutor during trial preparation.
There are two camps of thought when it comes to whether or not the examiner should take notes with him/her to the stand while testifying. One camp believes it is generally not a good idea for the examiner testifying to take notes or reports to the witness stand. There are several reasons for this. First, the notes are available to the defense to examine if the examiner refers to them. Second, it may give the perception that the examiner does not know the information about which he is testifying. This line of thought is fine if the information is easily committed to memory. However, the other camp believes if the examiner is being asked to testify about numerous dates, amounts, measurements or detailed information regarding several computers or hundreds of floppy disks that is easily confused or difficult to recall, it may be necessary to use notes. If the examiner believes it is necessary to use notes while testifying’ he/she should discuss this with the prosecutor and both should know exactly the contents of the notes to be used.
There may be times when the defense attorney will want to Voir Dire the witness. This is a preliminary examination of the examiner to determine the competency of a witness. The defense attorney may try to demonstrate to the judge or jury that the witness is not competent to testify as an expert. The examiner must show that his education, training and experience allow him to present testimony he/she is about to render. The defense attorney may ask to Voir Dire the examiner out of the presence of the jury. There may be a couple of reasons for this. As already stated, the attorney may be trying to show that the witness is not qualified to testify, therefore, the jury will not hear the witness testify. The second reason may be that the attorney may want to try out some questions on the witness and then determine from the witness’s answers if those questions should be used in front of a jury.
B. Cross Examination
This is the questioning done by the defense concerning the information the examiner testified to on direct examination. The purpose is to clarify or discredit testimony already given so as to neutralize damaging testimony or present facts in a light more favorable to the defense. The scope of the cross-examination should be limited to topics testified to during direct examination and impeachment, but there is usually a wide latitude given.
In order to accomplish the purpose of cross-examination the defense attorney will take different approaches in asking questions. The defense attorney is allowed to ask leading questions. A leading question is one which itself suggests the answer. For example, “You did not retrieve the knife, did you?” The examiner must be cautious about agreeing to what is presented in a leading question. Often there is part of the statement that is correct, while part is incorrect. The defense attorney may try to insist on a “yes” or “no” response. If this occurs the examiner must qualify his/her answer by indicating that the question cannot be answered with a simple “yes” or “no”. Minor changes may be posed as possible changes in the examiner’s direct testimony to make the testimony less damaging. The examiner should be very cautious about compromising his/her testimony. Through a series of these minor variations the entire meaning of the examiner’s direct testimony can ultimately be changed. The examiner should use his/her own terminology rather than accepting the defense, or even the prosecutor’s phrasing. The examiner may have given sworn testimony several times on the same topic prior to his/her testimony at trial. The defense attorney will have reviewed these prior statements and will undoubtedly ask questions similar to those asked previously. If the response at trial is slightly different, the defense attorney will make an issue of the inconsistent statements by the examiner on the same topic in an attempt to compromise the examiner’s credibility as a witness. The examiner will quickly realize just how important his/her previous testimony was.
The defense attorney will often ask if the examiner has discussed his/her testimony with the prosecutor prior to appearing in court. This is an attempt to imply that the examiner has been told what to say while testifying. It would be foolish for a prosecutor to put a witness on the stand to testify without having discussed their anticipated testimony and the defense attorney is well aware of this. Be honest in your answer.
There are numerous tactics used by defense attorneys to get witnesses to relax or loose track of just what is being covered during testimony. The examiner should remain focused on the testimony and not get distracted by these tactics. Some examiners become very concerned that they will be asked trick questions. This should not be a concern if the examiner stays alert and has prepared for his/her appearance at trial. Some common problem areas will be discussed in subsequent sections of this guide.
C. Re-direct and Re-cross Examination
During these phases of the examiner’s testimony the scope of the examination narrows. The purpose of these phases is to rebut or clarify any damaging testimony elicited during the previous phases. The examiner may get the feeling that the testimony is about concluded, but he/she should not lose sight of the fact that this is still very important testimony. At times it may seem that it is simply an argument over semantics, but this may become important later especially in closing arguments.
Occasionally during the time an examiner is on the witness stand, his/her testimony may be interrupted by objections. When this occurs the examiner should stop speaking, he/she should not try to rush or continue an answer in an attempt to get the information out in spite of the objection. When either attorney makes an objection, they should very briefly state the basis for the objection. What often occurs is that the attorney will go on to state not only the basis for the objection, but will explain the reason for the objection. The examiner who is testifying should pay close attention to the explanation; this may give some indication as to how the examiner should respond to further questions along the same line. After the objection is made, the judge will rule on the objection.
The judge may overrule the objection, in which case the examiner/witness will be instructed to answer the question. The judge may sustain the objection, in which case the attorney asking the question must rephrase the question or change the line of questioning.
E. Cross Examination Tactics
It is the duty of the defense attorney to do the best job possible to further the interests of the defendant. The tactics used during cross-examination are designed to achieve this goal. The tactics are designed to generate a reasonable doubt. At times cross-examination may seem to be a personal attack, but the examiner must maintain a professional approach in dealing with these tactics. A few of the more common tactics will be discussed here, with problems presented by cross-examination discussed in a later section. Repetitive questions on the same topic are often used to probe the consistency of the examiner’s testimony. The defense attorney may rephrase questions and repeat the question numerous times during the course of the cross-examination. If the defense attorney can find a discrepancy in the testimony, he/she will attempt to expand the discrepancy. To deal with this situation, know the facts and listen carefully to the question being asked. The examiner must also be certain he/she fully understands the question before responding.
Compound/complex questions may be posed by the defense attorney and then a simple yes or no response demanded. Often there is at least part of the question that is correct, but a portion that is incorrect. If this is the case the examiner is not limited to the “yes” or “no” demanded, but should state that the question cannot adequately be answered in the manner requested. The examiner can also point out that part A of the question is correct, but part B is incorrect. If this type of response is not allowed, it will have at least alerted the prosecutor who can revisit the topic on redirect examination.
Rapid-fire questions may be posed with little time allowed for the examiner to respond. This tactic is designed to make the examiner respond with inconsistent statements. Just because the defense attorney seems to be in a hurry does not mean that the examiner has to join the race and respond as quickly. The examiner should pause after the question to make sure the question is understood, think about the correct response, and then speak slowly and distinctly when answering.
The defense attorney may use badgering tactics in an attempt to have the examiner become angry or lose his/her composure. This is an attempt to impeach by demeanor. The examiner should remain calm and speak in a respectful manner when responding to this tactic. A good general rule for these situations is the more badgering the tactic of the defense attorney the more polite and respectful the response by the examiner. This will tend to emphasize the tactic and make it less effective.
Examiners should realize that when testifying they are on their own and should not look to the prosecutor for protection or help in dealing with the situation. Responses given on cross-examination can alert the prosecutor to return to the topic on redirect examination to clear up confusion that may have been created.
VIII. PROBLEMS TO BE AVOIDED.
A. Name of the Game
It is not uncommon to hear a witness discuss trial situations and describe them as being some kind of “game”. Nothing could be further from the truth. Trials are extremely serious situations. Any witness that views their part as some type of game is in for serious problems. Keep in mind that the trial is the culmination of months of hard work. In a lot of cases the examiner’s involvement diminishes following his/her examination, but the attorneys handling the case have been working on preparations for the trial since the arrest. The defense attorney will have gone over every piece of information he/she can find in preparation for the cross-examination of the examiner. He/she will have planned the strategy and tactics to be used and will have structured the questions to be posed in an exact manner designed to elicit the desired response. Very few examiners have the time or expertise to prepare their testimony in this manner. Even if they do they still are not the ones asking the questions.
The best strategy for the examiner is to know the truth and testify to it. Keep in mind that it is relatively easy to tell the truth because you do not get confused by other stories that may have been related in the past. Keep in mind the oath that is taken:
“I swear to tell the truth, the whole truth, and nothing but the truth.”
Defense attorneys develop a style for cross-examining a witness based on what they believe will work best to achieve their goal. This style may or may not be their actual personality or nature. The examiner should keep in mind that the style is designed to extract the desired response to their inquiries.
The defense attorney may approach the witness in a friendly manner and ask a series of questions, which are of little or no importance. With each question, the attorney’s voice will get softer and slightly more quiet in hopes that the examiner will tend to emulate this by speaking quietly also. This makes it difficult for the jury to hear the examiner’s testimony and takes some of the effectiveness out of the pertinent portions of the testimony. The examiner should remain alert and speak up when responding to questions. Questions may be posed to the examiner in a demeaning or condescending manner appearing sympathetic towards the examiner in an attempt to give the impression the examiner feels inferior and lacks confidence. The best method for the examiner to handle this situation is to respond to questions with firm, deliberate and decisive answers.
Some defense attorneys may act as though they really do not understand what is going on or what the witness is talking about. This is an attempt to get the examiner to overstate his position. Do not be fooled by this approach. The defense counsel knows exactly what is taking place and understands not only what the examiner is stating, but also what the defense wants the examiner to state. If the examiner overstates the testimony, the defense will be ready to point out the exaggeration in closing argument.
C. Hypothetical Questions
The examiner may be asked to give his opinions to a set of hypothetical facts or circumstances, which are posed by the defense attorney, which may be very similar to facts and circumstances testified to on direct examination. The hypothetical information may have only slightly different variances, but if these differences are not pointed out, the defense attorney will assert that the examiner is changing his/her testimony. Contradiction is the hallmark of impeachment.
Occasionally the hypothetical questions will deal with the examiner’s authority and established procedure and policy. These questions are designed to show that the examiner violated procedure or policy in handling the situation or evidence. The examiner should keep in mind that no two situations are exactly alike and there may have been pertinent information omitted in the hypothetical posed by the defense attorney. The examiner must be certain that he/she fully understands the question and all the aspects of the hypothetical, carefully considering the response before it is given.
D. Witness Vanity
The defense attorney may seem to attack the examiner professionally by being sarcastic or attempting to make the examiner the brunt of a joke. There may be attempts at making the examiner appear foolish or not know what really took place. The examiner must not let his/her vanity get in the way of maintaining a professional demeanor. None of these tactics will be effective unless the examiner allows them to work. The more professional the examiner, the more obvious the tactics will be to the jury.
E. Inconsistent Statements
The defense attorney may attempt to alter the examiner’s testimony given on direct examination by making minor changes. If the examiner does not detect these minor changes and accepts the changes, the defense attorney will be sure to point out these discrepancies later. The defense attorney will usually begin his question with a phrase such as “You testified that . . .” and then alter the testimony previously given to his benefit. The examiner must listen carefully to the question and then respond by first stating “No.” and proceed to correct the alteration.
Sometimes the defense attorney will simply reverse a portion of the examiner’s prior testimony. For example the examiner may have testified, “I found the records at the back of the front bar”. When the defense attorney poses the question to the examiner, he may state, “Now you say you found the records at the front of the back bar.” This type of situation is designed to see if the witness can recall exactly what his/her prior testimony was and try to confuse the issue and muddy the testimony diverting the jury’s attention from the real issue. The witness must realize that when the defense counsel repeats the examiner’s prior testimony, there is a likelihood that the testimony is not exactly what was stated.
In some instances there may have been two or more examiners involved with a situation and both may give testimony. The defense attorney will question each examiner in detail concerning his/her observations or examinations in an attempt to find contradictions between their testimony. The attorney will then try to shake the examiner’s confidence or force the examiner to state that either he/she is mistaken or the other examiner is mistaken. The discrepancies may not pertain to important facts, but they can be used to cause problems with the prosecutions witnesses. Double checking every detail during trial preparation is the best way to avoid these types of problems.
The most common method of using inconsistent statements by the defense is to rely on prior sworn statements by the examiner that may be from affidavits, hearings, depositions or other sources. The defense attorney will attempt to impeach the examiner’s testimony by using the prior transcripts to find conflicts with the examiner’s testimony at trial. The examiner may be asked to read aloud his own prior testimony and then be put on the spot of confirming his testimony. The only way to avoid this situation is to prepare properly for all occasions when sworn testimony will be given and to review each of the transcripts of the prior testimony before trial. The examiner should keep in mind that there may not be any inconsistencies in his/her testimony, but the defense attorney may go through the process in an attempt to convince the jury that the defense believes there are inconsistencies.
Questioning in this area will run the entire spectrum from the examiner being unqualified or inexperienced to the examiner being overqualified. It is usual for the prosecutor to at least run through briefly an examiner’s education and professional training on direct testimony which opens the door for cross examination questions in this area. Occasionally the defense will attempt to show that the examiner has testified to activities for which he/she has not had proper training. The defense can then cast doubts about the activities if performed by unqualified personnel. There may be an inference that something is wrong with the examiner’s job performance if he has been a examiner for twenty years and is still “just an Examiner 1”. Examiners must be careful that they do not try to testify beyond their qualifications.
Defense attorneys will in certain instances ask the “could you have done better” question. At first glance this seems to be a no win situation for the examiner, but you must keep in mind that there is almost always something that could have been done different and it may even have been better. The best method for handling these types of inquiries is to be aware of all the circumstances and respond that given the situation at the time all proper procedures were followed.
G. No-Win Situations
These are the classic trick questions that everyone has heard, such as “have you stopped beating your wife.” Either way the question is answered will create difficulty. These questions can be posed in a variety of ways that are not readily apparent.
There are also the questions that will be asked of the examiner to which an affirmative answer indicates he/she may have done something wrong and a negative response leaves the impression that the examiner is not being truthful. For example, the examiner may be asked if he has ever made a mistake. Everyone has made a mistake; therefore, the correct response should be a firm “Yes.” The examiner may be asked if he has ever told a lie, most everyone has told a lie at sometime. The correct answer to this type of inquiry should be, “Yes, but never under oath”. There are also a lot of questions which are designed to cast doubt concerning an examiner which must be answered truthfully and will not cause any real problems; such as “Do you gamble”, “Do you drink”, or “Have you ever violated the law. ” Many of these questions are objectionable, at least in trial, but a prosecutor may decline to object for strategic reasons.
H. The Primrose Path
The defense attorney may ask the examiner a series of questions. These questions are carefully worded, very broad, and overly simplified statements with which the examiner is asked to agree. On the surface and without careful consideration of where these questions are headed they seem to be undeniably correct. The examiner is led down the path of questions agreeing to each until he reaches the end, which is a conclusion he knows is wrong. The technique has been used in various situations.
The questions are very broad and simplified. The questions do not take into consideration all of the possibilities and extenuating circumstances. The examiner can not simply agree or disagree with the question without getting into difficulty, his/her responses must supply additional information which the defense attorney omitted from the question.
I. To your Knowledge Questions
The defense attorney may add a short phrase to the question posed to the examiner such as: “to your knowledge” or “as far as you know.” These can present problems not only for the examiner testifying, but other witnesses as well. The examiner may be induced into testifying to something he/she is not sure of or he/she may make an assumption that he is not sure of. The examiner may not know if certain procedures were followed but is induced by the form of the question to respond with a “yes” which could be incorrect. If the examiner responds with “not to my knowledge,” the response suggests that the procedures were not followed. The examiner should have simply responded: “I don’t know.”
J. Have you Told us Everything?
The defense has a right to ask the examiner if he/she has testified to all his/her knowledge of a certain event. For example the defense attorney may ask: “Is that all of the involvement you had in this case?” or “Did you do anything else in connection with this case?” This is not some type of trick question, but this presents a problem for the examiner, as he/she may not remember all of the details of the crime scene search or following examination with enough clarity that he/she can relate them at the time. The examiner would like to leave the door open to the possibility that he/she will later recall other details. If the examiner is certain that there are no other details then say that. If the examiner is uncertain then it is permissible to answer: “I have told you about all of the conversation I recall at this time.”
Remember, you are sworn to “Tell the truth, the whole truth, and nothing but the truth.” All you have is your integrity and credibility, once you lose that all is lost. When the examiner is called upon to testify in court, his/her true purpose is to assist the court and jury in determining the facts of the case. The examiner is not an advocate of either the prosecution or the defense, but an advocate of the truth based upon his/her scientific examination or observations.