Legal Question in Criminal Law in New Jersey

TESTIFYING AS A WITNESS IN A CRIMINAL CASE.

Compiled by KENNETH A. VERCAMMEN from various sources

Courts, Police and Prosecutors have an increased commitment to addressing the needs of witnesses. As a witness, their assistance is important to our system of criminal justice. As a witness, they find you in the same situation, as do many others, you may be unfamiliar with court procedures and have fears and uncertainties about what is expected or required of witnesses. This article, compiled from suggestions of prosecutor�s offices, provides a brief explanation of what to expect on the witness stand.

COURTROOM PROCEEDINGS:

One of the fundamental rules in a criminal case is that both the prosecution and defense have an opportunity to question the witness. There are specific rules of evidence, which must be followed by the court. At times, these rules may seem unnecessary or frustrating but they are directed toward one goal- to determine the truth in the case. Some guidelines for you to remember:

GUIDELINES FOR WITNESSES IN CRIMINAL TRIALS

1. Prior to testifying, try to prepare yourself by recalling the incident in your mind, but do not memorize your testimony.

2. You are sworn to tell the truth. Tell it by answering accurately about what you know.

3. Listen carefully to the questions asked and think before speaking. If you do not understand the question, ask that it be repeated or explained. Do not look for assistance from the policeman or prosecutor when you are on the stand. If you need help, ask the Judge.

4. Speak clearly and loudly.

5. Answer only the question asked, directly and simply. Do not volunteer information.

6. Do not guess or speculate. If you do not know the answer, be sure to say so. If you give an estimate, make sure everyone understands you are estimating.

7. Do not answer if there is an objection.

8. Do not lose your temper. Upon cross-examination, remain calm and composed.

9. Always be courteous, even if the attorney questioning you appears to be discourteous. Being polite makes a good impression on the court and jury. Do not try to be "smart" or evasive.

10. Be serious in and around the courtroom. Avoid joking.

11. Neat appearance and proper dress are important.

12. If the question is about distance or time and your answer is only an estimate, be sure to say that it is only an estimate.

13. Leave the stand with confidence, knowing that you have presented the truth to the best of your ability.

Fears/Threats

If you have any fears about your involvement in your case, contact your own town's local police department. On extremely rare occasions, you may receive a threat. If you are threatened, immediately contact your law enforcement agency to get immediate assistance.

ON BEING A WITNESS:

No crime can be solved without the help of witnesses. It is your duty as a witness to give your testimony when needed. While it may not always be convenient for you to come to court to testify, please keep in mind that some day you may be a victim and your own case may depend on the willingness of a witness to come forward and tell what he/she knows.

As your case is being prepared for trial, it may be necessary for the attorney who sent you subpoenas to contact you. It is important to keep them informed of your current address and telephone number. If you move, be sure to let them know.

SUBPOENA

A Subpoena is a Court Order directing you to be present at the time and place stated. You may receive your subpoena by mail or in person. When you receive a subpoena to appear in court, you are required by law to attend. Be sure to bring the subpoena to court.

WHERE DO I GO?

You will find that most subpoenas will request that you report to the Court on the date set for your appearance as a witness. This is to allow the Attorney who sent you the subpoenas an opportunity to discuss the case with you prior to your actually taking the witness stand.

GET COMFORTABLE

Get a good night's rest. Dress conservatively. Your normal business attire is probably about right. Be early. Give yourself a few minutes to experience the room in which you are about to testify. It is going to be a strange environment for you, so walk around. Get used to the lighting, the acoustics, the distance your voice might have to travel.

JUST THE FACTS

Leave your impressions from film, television and other folklore at home. In the real world, the attorney seeking your testimony wants from you but one thing; the facts. What you saw. What you said. What you did.

In limited circumstances, what you heard. Unless you are asked to do so, do not draw conclusions. Unless you were called as an expert witness, keep your opinions for another day.

RULES TO REMEMBER

Rule 1. If you are asked what time it is, give the time. Don't offer instructions on how to build a watch.

Listen to the question, answer that question, then wait for the next one. When they run out of questions, your testimony is over. Go home.

Don't answer a question you think was asked, should be asked, or want to be asked. And take your time. As with baseball and other matters of importance, there is no clock. Your testimony is very important, that's why you were called in the first place. There is no hurry. As in golf, there are no prizes for speed, just accuracy.

Rule 2. If you do not understand a question, respond by saying

"I do not understand the question.'' Have counsel rephrase the question, explain or define any word that you don't understand.

That's what you mean by ''I do not understand the question.'' It's not impolite. You are not comparing education. You just don't understand the question. If counsel cannot rephrase the question so you can understand and adequately respond, that's not your problem. Being a witness is hard enough.

Rule 3. If you knew the answer some time ago, but do not recall at the moment, say ''I do not recall'' Not everyone can remember which shoes they wore the second Tuesday of last month. There is no disgrace in failing to recall certain details, especially when they are remote in time.

Your testimony is very important, that's why you were called in the first place.

Rule 4. If you are asked a question, and you do not know the answer, say ''I Do not know.''

Too many witnesses think they have to know, or are expected to know the answer to practically everything asked of them while on the stand. No one can be expected to know everything. If you seem to, your entire testimony may appear rehearsed and unconvincing. When you don't know, you don't know. SAY SO..

Such a reply is entirely appropriate.

Rule 5. Tell the truth.

You saw what you saw. You did what you did. If someone else has a different version of these events, well, someone else has a different version of these events. In the end, the judge or jury will sort it all out.

Rule 6. Be yourself.

As you would converse with a friend or neighbor, speak in your own words and use your own vocabulary. Answer the questions as naturally as you can. You don't want to sound like an actor delivering memorized lines.

There is no getting around it; while giving testimony, you are on stage. Everyone in the room, especially trial counsel, is watching you testify. They not only listen to your word, but also watch how you present them. You must be as relaxed and natural as possible. Body language is a powerful communication tool. Use it properly.

HELP THE COURT REPORTER

Speak up. What you say will be taken down by the court reporter, later transcribed onto a printed page. This is called ''making a record.'' Consider two limitations in this process;

1. Your testimony has to be verbal. It is difficult to transcribe a nod of the head or shrug of the shoulders. Don't spread your hands apart and claim ''About this much.'' If the answer is ''two and one half feet,'' Say so.

2. Only one person can speak at a time. Pace your responses so as to avoid ''talking over'' the attorney asking the questions.

HELP YOURSELF

Give straight, direct and specific answers whenever possible. Depending upon the question being asked, try and avoid needless qualifiers like ''In my opinion,'' ''I guess,'' ''I think,'' and ''I believe'' JUST THE FACTS. Any reservations displayed on direct examination will come back to you on cross.

If the answer is ''yes'', ''blue'' or ''I don't know,'' SAY SO.

Don't guess, exaggerate, or speak in broad, sweeping terms. Try not to generalize, and do not explain anything unless specifically instructed to do so.

If you make mistake, or give the wrong answer, STOP.. As soon as you realize you have given the wrong information, or left something out, STOP. Tell the attorney you made a mistake, say ''I made a mistake. May I correct myself.'' Clear the record then and there. It is much better than to have the opposing attorney question you about it later on cross-examination.

If there is an objection, or if the judge or another attorney interrupts your testimony; FREEZE. Do not say another word until instructed to do so. The lawyers will argue out the problem on the spot. Wait until told to proceed.

There is no need to ''squeeze in'' an answer during this process. Let the lawyers work it out, that's what they do.

HELP THE COURT

Some attorneys lose their manners right after the bar exam. Some have the personality of a briefcase. For others, this would be an improvement. Do your best anyway, and try to be polite. If you have a bad temper, leave it in the elevator.

Do not engage in a battle of wits. You can't win. It's not because you don't get to ask questions. You are gathered for the purpose of finding the truth, not to judge who can best exchange sarcastic remarks.