TESTIFYING IN CRIMINAL CASES
ROBERT C. PHILLIPS
Deputy District Attorney (Ret)
January, 2009
I. Rule #1: Always Tell the Truth.
II. The Importance of Witnesses:
A. Witnesses are the primary vehicle by which evidence is transmitted to the “trier-of-fact” (i.e., jury).
B. Witness credibility is almost always an issue:
1. Juries are instructed concerning things to consider in evaluating the credibility of a witness (E.C. § 780; CALJIC 2.20), including, but not limited to;
a. Demeanor while testifying and manner in which he/she testifies.
b. The character of his/her testimony.
c. The extent of his/her (mental) capacity to perceive, to recollect or to communicate any matter about which he/she testifies.
d. The extent of his/her opportunity to perceive any matter about which he/she testifies.
e. His character for honesty or veracity or their opposites.
f. The existence or nonexistence of a bias, interest, or other motive.
g. A statement previously made by him/her that is consistent with his testimony at the hearing (but only after the truth of the statement has been attacked [See E.C. § 791]).
h. A statement made by him/her that is inconsistent with any part of his testimony at the hearing.
i. The existence or nonexistence of any fact testified to by him/her.
j. His/her attitude toward the action in which he/she testifies or toward the giving of testimony.
k. His/her admissions of untruthfulness.
C. Juries do not necessarily accept at face value the testimony of a law enforcement officer or other government official.
1. Any indication of untruthfulness from a particular witness causes juries to largely (or totally) disregard the witness’s testimony in all respects.
a. Juries are instructed that; “A witness who is willfully false in one material part of his or her testimony, is to be distrusted in others . . . .” (CALJIC 2.21.2)
2. Juries tend to overlook a multitude of sins a defendant may have committed in those cases where they disbelieve the testimony of any “material” police officer, victim or witness (i.e., one whose testimony is important to the outcome of the case).
a. Defendants are given more leeway and, in some cases with some juries, are almost expected to lie. At the very least, it is less shocking to a jury when a defendant does lie.
b. Victims, police officers, and other witnesses, however, are expected to be honest, professional and “fair” in all respects.
D. The “character” of a witness is also always an issue: Credibility is but one factor in a jury’s evaluation of the character of a witness. Others:
1. Appearance of professionalism.
2. Interest in doing a good job.
3. Sincere concern for victims.
4. Fairness.
- Lack of prejudice or bias.
- Lack of any offensive traits in his/her personality.
E. Witness “likability” is always important.
1. A displeasing personality will turn a jury off despite otherwise credible testimony.
2. Personally offensive, profane, physically unkempt, witnesses don't carry much weight with a jury.
F. Sympathy for a witness (or victim, or even defendant) is always an issue.
1. A case where a victim “got what he deserved” makes for a difficult case to prosecute.
2. A defendant with whom a juror can relate (e.g., looks like the juror’s son) or with whom he/she can identify (“I’ve done worse.”) will get the juror’s sympathy.
3. Juries, made up of human beings, are often guided by emotions, leading to a trial decision which the jury will subconsciously justify and rationalize by selectively hearing and/or believing the evidence as presented.
III. Rule #2: Be Prepared.
IV. Why Being a Good Witness is so Important:
A. A prosecutor cannot afford to give away any part of his/her case. To do so decreases the likelihood of conviction.
B. Good, honest (and believable) witnesses are but one (albeit a major) factor making a good, provable case.
C. Remember: Juries never get the full story.
1. What was obvious to you at the scene of an arrest/incident, etc., is not near as obvious to a jury when all they get is:
a. Some, but not all of the facts.
(1) Poor law enforcement investigations result in important evidence, facts and circumstances being missed, ignored, and/or lost.
(2) Pretrial motions (e.g., motions to suppress, in limine motions to exclude evidence, etc.) tend to eliminate some important aspects or factors in every criminal trial.
(3) Poor and/or incomplete efforts on the part of the prosecutor result in relevant evidence never being heard by a jury.
b. An unemotional, sanitized, verbal description of the alleged crime and the surrounding circumstances.
c. A defendant, now cleaned up, sober, rational and cooperative, who has had months to practice his alibi, story, or explanation for the events.
d. Smoke screens put up by the defense used to confuse, mislead, and/or divert the jury's attention from the true issues in the case.
V. Rule #3: Always Tell the Truth.
VI. Create and keep up to date a Résumé:
A. In some logical order (i.e., such as below), you need to list your:
1. Education
a. Degrees and/or earned college credits
b. P.O.S.T. and other training classes
c. Certificates, honors, etc.
2. Employment Experience:
a. Specific assignments and duties
b. Promotions
c. Specialized responsibilities (E.g., Training Officer, SWAT, etc.)
3. Other Relevant Positions:
a. Outside teaching assignments
b. In-service training assignments
4. Relevant Training (not included above):
a. Professional schools, etc.
b. Specific areas of expertise
c. Training classes (In-service or otherwise)
5. Writings:
a. Published articles
b. Research projects
6. Other Relevant, Specialized Experience:
a. E.g., EMT
b. E.g., reserve officer experience
c. Specific “high profile” cases involved in
7. Professional Associations
8. Professional Commendations, etc.
B. Keep it up to date.
C. Don't be modest.
D. Attach it to police reports where your expertise may be important, or at least make it available to the prosecution.
1. Anytime you are going to be testifying to any opinion, based upon your law enforcement experience (e.g., probable cause, DUI, 11550, etc.), your expertise is important.
2. If not already provided, bring it with you to court.
3. Keep in mind, it will become “discoverable” to the defense.
VII. Rule #4: Be Prepared.
VIII. Trial Preparation:
A. Obtain and study (not just read) all reports of the incident as soon as you get your subpoena.
1. It is not improper to refresh your memory of the events by reading your (and other’s) reports prior to testifying.
a. Therefore, you need not worry about having to admit in testimony that you read over reports and refreshed your memory.
2. Note errors, discrepancies, or anything with which you disagree, and tell the prosecutor about it as soon as possible, but certainly before testifying.
3. Note facts or circumstances not contained in the reports, and tell the prosecutor about it as soon as possible.
a. Even things you may feel are insignificant may make the difference in the case.
B. Check in by telephone with the prosecutor who had you subpoenaed (if known) as soon as possible.
1. Felonies: The prosecutor's name and phone number should be on your subpoena.
a. Call him/her immediately upon receipt of your subpoena, unless otherwise instructed.
(1) Note: It is far easier for each witness to locate, call and talk with one prosecutor, than it is for one prosecutor to locate, call and talk with a dozen or more witnesses.
b. Ask him/her if there is anything you need to bring to court (e.g., physical evidence which has been impounded).
c. Determine when and where you are expected to be for your testimony.
(1) Note: If the subpoena is for a jury trial (as opposed to a court trial, preliminary hearing or pretrial motion), the time and location listed on your subpoena is commonly for the “trial call,” where the readiness of the parties and the availability of a courtroom is discussed. And a jury has yet to be picked. When it is, you may not be the first witness.
- A misdemeanor jury trial will likely be started on the date indicated on the subpoena, in that it shouldn’t take more than half a day to get a courtroom assigned and a jury picked.
- A felony trial will not likely require your testimony for anywhere from a day after the listed trial date to maybe weeks later.
(2) If the subpoena is for a court trial, preliminary hearing or pretrial motion, you will probably be testifying within hours of the date and time listed on your subpoena.
d. Schedule a date, time and place for an interview (see below).
2. Misdemeanors: Prosecutions on misdemeanors are not normally assigned to a prosecutor until the morning of trial. In such cases, you need to come in on the date indicated on the subpoena and check in with the prosecutor as soon as his/her identity is known. It is possible that you will be testifying at some point that day.
3. Miscellaneous:
a. Scheduling Conflicts: In all cases call immediately upon receipt of a subpoena to discuss with a deputy district or city attorney any attendance problems you may have, such as prescheduled vacations or other necessary obligations.
(1) Just about all conflict problems can be worked out if discussed ahead of time.
(2) Simply ignoring a subpoena may result in a warrant for your arrest being issued and/or disciplinary actions by your department, and may result in a case being dismissed or other sanctions imposed on the prosecution.
b. Threats: Discuss with the prosecutor any safety concerns you may have. Threats to you or any other witness is a felony (P.C. § 136.1), and will be treated seriously. (If it is not, talk to a D.A. supervisor.)
C. Pretrial interview: Ask the prosecutor what he/she is going to ask you about in testimony.
1. Note: The prosecutor should require an interview with you prior to giving testimony. Sometimes, however, time is limited (or non-existent). Sometimes the prosecutor is just not doing his/her job.
2. A pre-testimony interview is lawful and proper.
a. When asked about it during testimony, you must freely admit having discussed your testimony with the prosecutor. There is nothing illegal or unethical in participating in such an interview.
b. If asked while testifying whether the prosecutor told you how to testify or what to say, a good, issue-ending response is something similar to; “Yes, he (or she) told me to tell the truth,” if that is in fact what you were told.
3. Ask the prosecutor what he/she expects the defense to ask you about in cross-examination, so you can think about your responses prior to testifying.
D. Talking to the Defense:
1. You have no legal obligation to talk to the defense attorney, his/her investigators, or the defendant.
2. But: The prosecutor will not (or should not) suggest to you that you should not (or will not) talk to the above people.
3. The decision whether you should talk to the defense is your decision.
a. However, if you do choose to talk to the defense, remember the following:
(1) Never speak “off the record.”
(2) Never joke with the defense.
(3) Make it a condition that you be allowed to tape record the conversation or have present with you the prosecutor, a prosecution investigator, another police officer, or, at the very least, a friend.
- If the person refuses to allow a tape recording of a witness, you might consider declining the interview. At the very least, you should view this as a danger sign.
b. Caution: It is usually not a problem for you to discuss your testimony with the defense. Unfortunately, however, some unscrupulous attorneys and/or investigators will take your statements out of context, misrepresent them, or blatantly lie on the stand about what was said. It is not paranoia to guard against the possibility of this happening. Things to watch for:
(1) An investigator representing him or herself as being from the “PD” or “DA’s” office, or otherwise vague as to who they work for. Ask for credentials before talking with him/her. Obtain a business card and hold onto it.
(a) “PD” may mean “Public Defender” rather than “Police Department.”
(b) “DA” may mean “Defense Attorney” rather than “District Attorney.”
(2) Anyone other than the prosecutor (or a verifiable representative from his/her office) telling you not to come to court, for any reason.
(a) It does not matter whether you have a prosecution or a defense subpoena.
(b) Check with the prosecutor assigned to the case.
c. Always report the fact and content of any discussion had with a defense representative to the prosecutor.
4. If you choose not to talk to the defense, be prepared to tell the jury why you chose not to do so.
a. The defense will use your reluctance to talk with them as an indication of bias against the defendant or for the prosecution.
(1) This is not entirely bad, particularly if you are the victim or simply dislike crooks.
b. Be truthful in your response: E.g.:
(1) “Because I don't like your client.”
(2) “Because I don't trust defense attorneys.”
(3) “Because I did not want you to take anything out of context.”
(4) “Because I wanted the jury to hear the full story without you being able to pick and choose what you might want to ask me.”
(5) Etc.
5. Do not socialize with the defense team (defense attorney, investigator, and particularly, the defendant) during breaks in front of the jury. It implies an acceptance on your part of the defendant as a human being and the defendant's criminal actions as unimportant.
a. If the jury thinks you don’t care, they won’t care.
b. If the jury sees you avoiding the defendant, it adds weight and credibility to your testimony to the effect that the defendant is not a good person.
(1) Being friendly with the defendant in front of the jury will hurt the prosecution more than if you merely showed some reluctance to cooperate with him.
c. Build rapport with the crooks on the street, if you wish. In front of the jury, a defendant should be treated like the type of person he is: a criminal.
IX. Rule #5: Always Tell the Truth.
X. Trial Day Preparation:
A. Having contacted the prosecutor prior to testifying, you should know when and where you are expected to be for your testimony.
B. Show up early, allowing enough time for traffic jams, getting lost, flat tires, and other unforeseeable problems.
1. Witnesses commonly complain about having to wait a long time to testify.
a. This is inevitable, although a prosecutor should be able to minimize the wait with proper planning.
b. Remember that if you have to wait before testifying, you suffer no more than some inconvenience, albeit annoying inconvenience.
c. If the prosecutor needs you before you get there, the prosecutor could suffer any of the following:
(1) Dismissal of the case by a judge who refuses to wait for you.
(2) Embarrassment in front of a jury whose opinion of the prosecutor’s professionalism is an important factor in the eventual jury verdict.
(3) Upsetting the scheduled testimony of other witnesses who then may be forced to wait even longer or, worse yet, come back on a second day.
d. If you feel you were required to wait an unreasonably long period of time, or you were called in when the prosecutor did not (or should have known, would not) need you to testify, a complaint to the prosecutor’s supervisor, or your D.A. Liaison Deputy, is encouraged.
2. Expect to wait, and bring a book.
C. Dress and groom appropriately:
1. Proper courtroom attire is an important part of the jury’s perception of your character, etc., as discussed above.
a. For all: Office, church, or “formal restaurant-visiting attire” is always appropriate.
b. A peace officer: Street police uniform, or (for males) a suit and tie, and (for females) a pant suit, blouse and skirt or anything appropriate for one’s office, church or formal restaurant-visiting attire.
2. Never wear:
a. Beach or picnic attire.
b. Shorts.
c. Halter tops.
d. Flip-flops.
e. Anything exposing excessive skin.
3. Proper, clean grooming is essential.
a. No “Don Johnson” or “Lorenzo Lamas” 9 o’clock shadows.
b. Hair properly trimmed, brushed and/or combed.
4. Officers working in an undercover capacity, or who come to court directly from the field wearing plain clothes, will be given the opportunity to explain before the jury why they're wearing less-than-proper attire. Such an explanation is sometimes very impressive to individual jurors.
XI. Rule #6: Be Prepared.
XII. Trial Testimony:
A. Review your reports again, before testifying.
1. You can take them with you right into court.
2. If you have them with you, you will be able to refer to them while testifying, if necessary.
3. But, do not read from them while testifying. You must ask the attorney questioning you whether you may refer to your reports.
B. You will have to wait in the hallway pending being called as a witness. While waiting, DO NOT:
1. Discuss the case or your (or their) testimony with other witnesses.
2. Talk to any trial jurors.
3. Socialize with the defense attorney, defense investigators, or (especially) the defendant, in front of the jury.
4. Act in any manner other than a professional manner.
C. When called as a witness:
1. You will be asked by the clerk to raise your right hand and repeat after her (or him): “Do you swear (or affirm) to tell the truth, the whole truth, and nothing but the truth, so help you God?”
a. Answer clearly, with a firm voice (but without over-doing it); “I do.”
b. A weak, equivocal answer (e.g.; “Uh, okay, sure.”) makes jurors wonder if you're contemplating doing something less than telling the “whole truth.”
2. You will be directed to be seated in the witness chair, alongside the judge.
3. You will be asked to state your full name, spelling your last name (and any unusual first and middle names) for the record.
4. Sit up straight, speaking directly into the microphone clearly and concisely, with your hands and fingers (and feet) out of your mouth.
D. Testifying:
1. Listen to the questions. If unsure about what is asked, ask the questioner to repeat the question because you did not understand it.
a. Never guess as to what is meant by a vague or confusing question.
b. Never try to answer a question you do not understand.
2. Looking at the jury:
a. Some prosecutors like you to direct your responses to the jury, “looking them in the eye.” This can sometimes appear too “rehearsed,” and shouldn't be overdone.
b. Other prosecutors prefer you to merely answer the questioner while looking at him/her; a more natural appearing response.
c. Doing a little bit of both, in a natural, easy manner, is probably the best way to testify.
3. Allow a second for the opposing party to object while you are thinking about your answer. If there is any discussion between the attorneys and the court (the judge) following the question, remain silent and wait for the court to make a ruling.
a. If the judge “sustains” an objection, you are not to answer the question.
b. If the judge “overrules” the objection, you are to answer the question.
c. If you are not sure what everyone is talking about, ask the court when they’re done whether you should answer.
4. Think about your response, and then answer it as shortly and concisely as possible.
a. Do not say any more than is necessary to respond fully to the question.
b. Do not volunteer more information than is reasonably requested in the question.
5. Never worry about how your answer sounds, as far as helping or hurting one side or the other.
a. Your job is to tell the truth, as you know it or understand it to be.
b. An answer purposely slanted to minimize what you perceive to be hurtful to the prosecution's case, for instance, will do more damage to your credibility and, ultimately, the prosecution’s case, than if you just answered honestly.
(1) First, your testimony may not even be damaging despite what you think, and
(2) Secondly, it is the prosecutor's job (not your’s) to worry about how to rebut damaging testimony.
6. If you don’t know the answer, your response is; “I don’t know.”
a. Never guess.
b. If not sure of the answer, go ahead and answer the question, but only after qualifying by saying that you are not sure.
(1) E.g.: Question: “What color was the car?” Answer: “I think it was red, but it might have been some similar shade. I'm not sure.”
(a) This way, when the car turns out to have been pink, your testimony won’t mess up the proof.
(2) Some prosecutors prefer that you merely say you are not sure and nothing more unless specifically asked for more.
7. If you know the answer, answer unequivocally.
a. Never say “I think,” or some other wishy-washy response, when you do in fact know.
b. Equivocal responses tell the jury that you are not sure, and considerably lessens the value and impact of your testimony.
(1) E.g.: Question: “Do you see the man who shot at you in the courtroom today?” Answer: “Well, he looks like the man,” verses; “He’s the man right there!” If you are sure he’s the man, don’t be afraid to say so.
c. If you’re sure, project that to the jury with straight, definite, unequivocal answers.
d. But, again, if you are not sure, don’t answer like you are sure.
8. Using reports to refresh your memory.
a. Prior to testifying, you should have studied your (and others’) reports sufficiently to avoid having to look at them while testifying.
- Exception: Don’t try to memorize serial numbers, license numbers, or other complicated lists of information. Juries don't expect that.
(2) If you try to look at your reports without going through the below listed steps, most defense attorneys will try to embarrass you by asking the judge to instruct you to put your reports down until the proper foundational questions have been asked.
b. If, while testifying, you are not sure of some fact, and that fact is contained in a report, and you need to check that report before testifying to it, there are two ways the prosecutor may “lay the foundation” for you to check your report:
(1) Refreshing your memory: A witness may look at anything that will help refresh his/her memory as to the facts being testified to. This will normally be some sort of report.
(a) “Mr Jones, were the facts I’ve asked for recorded in some report?”
“Yes.”
“Do you have a copy of that report in front of you?”
“Yes.”
“Would it assist you in remembering those facts if you looked at that report?”
“Yes, I think so.”
“Please then look at that report and read it to yourself, looking up when you’re done.”
(Witness reads report, and looks up.)
“Mr. Jones, has reading that report refreshed your memory as to the events of that day?”
“Yes.”
“Then what happened at that time?”
(Witness answers the question.)
(2) If reading the report does not refresh your memory (answering “No” to that question), the prosecutor will ask a few more foundational questions after which you will be allowed to read that portion of your report to the jury. This is called “Past Recollection Recorded.” (E.C. § 1237)
(a) “Mr. Jones, has reading that report refreshed your memory as to the events of that day?”
“No.”
"Mr. Jones, the report you read; when, in relation to the events of May 1, 1996, was that written?”
“About 2 hours later.”
“Who wrote it.”
“Me.” (Or, “Officer Smith.”)
"Were the facts fresh in your mind when you wrote that report?” (Or, “Did you read Officer Smith’s report when the facts were fresh in your mind?”)
“Yes.”
“Did you accurately record the events in your report?” (Or, “Were did the facts appear to be accurately recorded in Officer Smith’s report when you read it?”)
“Yes.”
“Then would you please read that portion of your report to the jury at this time.”
9. Speak in English:
a. Law enforcement officers tend to develop their own language which, in time, becomes second nature. Don’t use law enforcement jargon, terms, or slang (i.e., “cop-speak”) while testifying, at least without also offering an explanation.
(1) E.g.: “We went Code 7 at 2050 hours, when, while eating, this puke exited his vehicle and approached us, complaining that we should be out looking for a 187 suspect.”
(2) Rather: “We stopped to eat dinner at about 8:50 p.m., when, while eating, the defendant got out of his car and walked up to us, complaining that we should be out looking for a murder suspect.”
b. Writing police reports tends to develop the habit of using certain phrases which, when addressing civilians, sound awkward. Avoid them while testifying.
10. Cross-Examination:
a. The secret to successfully withstanding cross-examination is to always tell the truth.
(1) Being prepared is the second most important factor.
b. Few attorneys are very good at effective cross-examination.
(1) Pre-trial fear of an attorney’s pending cross-examination more often than not goes unrealized.
(2) Most cross-examiners tend to do more damage than good to their own case.
(3) Don’t think that just because the cross-examiner has a law degree that he/she has any idea what he/she is doing.
(4) A good cross-examiner, knowing that you are telling the truth and are prepared, will ask you few (and sometimes no) questions, knowing that your responses will only reiterate testimony damaging to their client in front of the jury.
c. Dangers:
(1) Do not let the cross-examiner put words in your mouth.
(a) If his/her question is misleading, tell him/her so.
(b) If his/her question misstates your prior testimony, tell him/her so.
(c) If his/her question states facts out of context, tell him/her so.
(2) Do not let the cross-examiner mislead you by comparing your testimony to other sources of evidence. Common tactic:
(a) “Well, Officer Jones, if I were to tell you that Officer Smith in his report of your interview wrote that you told him “__________,” are you now denying that?
i Do not assume that just because it’s in a police report, it’s accurate. Police reports are almost always incomplete, and often inaccurate.
ii And do not assume that just because an attorney told you it is in a report that it really is.
iii If your recollection of the events is contrary to what is (or is represented to be) in a report, then that is not your problem. You testify to the event as you remember it.
(b) Prior testimony: It is proper cross-examination to question a witness about that witness’ testimony recorded in a prior court hearing (e.g., a preliminary examination). But do not assume that just because it’s in a transcript of the prior hearing that it was recorded correctly.
(c) If you remember it differently, tell the cross-examiner that.
d. Always stay cool:
(1) Don’t let harsh cross-examination get you upset.
- Remain respectful to the attorneys (and the court) no matter what you think of them.
(3) As long as the witness remains cool, a jury is seldom impressed with, and most often critical of, an attorney who gets over-dramatic and unnecessarily aggressive.
(4) If you are telling the truth, and are prepared, there is absolutely NOTHING the attorney can do to embarrass you.
XIII Rule #7: Always Tell the Truth & Be Prepared
