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How to handle being a witness

By John Everett, JD, Prosecutor, Kettering, Ohio
Former Board President for Ohio Court Appointed Special Advocates (CASA)

Essential Rules for Testifying

1.  Tell the truth.

2.  Listen to the question.

3.  Understand the questions. Don't answer unless you do.

4.  If you don't understand the question, say so. Ask the questioner to explain, repeat or rephrase.

5. Answer clearly and directly.

6. If you don't know, say "I don't know." If you don't remember, say "I don't remember."

7. Don't confuse "I don't remember" with "I don't know."

8. Answer "yes" or "no" if appropriate.

9.  Don't answer "yes" or "no" if the question can't be answered accurately with yes or no.

10.  Don't speculate or guess.

11.  Speculated or guess if asked, but qualify your answer by identifying it as speculation or a guess.

12.  If you are unable to speculate or guess, say so.

13.  Don't assume.

14.  Assume if directed, but qualify, e.g. "at your direction, I am assuming that the car was traveling at 60 mph even though I have no knowledge of the speed. Based on the assumption, my answer is..."

15.   Be positive, assertive, confident, certain and precise.

16.  Don't give equivocal answers like "possible" and "probably" when you should be positive, confident, certain and precise.

17.  If you can't be precise, and must be approximate, say so: "it was around 3pm."

18.  Beware of questions that contain equivocal words like "possible" and "probably."

19.  On cross, answer narrowly. Answer only the question asked. Don't volunteer.

20.  Where appropriate, rephrase the question as part of your answer. (Q: Isn't it true the car was blue? A: It was blue, but it wasn't a car. It was a pickup truck).

21.  Don't let the questioner put words in your mouth. (Q: Isn't it true the car was blue? A: No. Q: What color was it? A: Aquamarine).

22.  Don't ask the questioner questions about the questioner's questions.

23.  Don't feel obligated to fill silences.

24.  Don't answer a question with a question, rhetorical or otherwise.

25.  Don't think out loud.

26.  Don't be apologetic or self-depreciating. ("Oh, I should know the answer. My memory is going.")

27.  Answer; don't offer editorial comment. ("That's a good questions." "I'm glad you asked me that question").

28.  Don't exaggerate or overstate.

29.  Be succinct.

30.  Remember you are on tape. "Uh-huh" can be erroneously recorded as "un-huh" and vice versa. Nonverbal communication — body language, gestures, tone of voice, do not make it in a transcript.

31.  Don't use formulations that dilute your credibility. If you preface your answer with "frankly," you suggest that you may be other than frank giving answers not labeled as frank.

32.  Stick to the point. Don't respond with extraneous details.

33.  Give complete answers. Don't omit important details. Don't expect the listener to understand certain details.

34.  Pay attention. Focus. Concentrate.

35.  Listen to every objection. Stop talking when one is made. Think about the objection.

36.  After an objection, wait for the Judge to decide the objection.

37.  If the judge instructs you to answer, you must answer.

38.  Be calm. Be controlled. Don't get angry. This is part of your job.

39.  Don't argue with the questioner.

40.  Be serious. Your testimony is no place for humor, sarcasm or irony.

41.  Beware of unfamiliar terminology in questions.

42.  Use terminology when appropriate.

43.  Don't use offensive language unless you are quoting another.

44.  Don't let the questioner interrupt you.

45.  Don't interrupt the questioner. Listen to the entire question.

46.  Do not interrupt the Judge. Answer his questions fully and as honestly as possible.

47.  Don't look to the prosecutor as if you need help answering.

48.  Correct mistakes. If you realize you have been inaccurate or incomplete, say so.

49.  Don't chew gum or eat candy, or anything else, while testifying.

50. Turn off your cell phone. Turn off your pager.

51.  Be on your best behavior. Don't be arrogant, flippant, hostile, evasive, nasty or superior.

52.  Be yourself.

53.  Dress appropriately.

54.  Keep in mind that no matter how pleasant the attorney is, she may have interests different from you and is likely to be hostile.

55.  Defense attorneys are not your friends. The rules allow them to lie to you, lie about you and lie about what others have said and done.

56.  Beware of questions that assume facts, as in, "Have you stopped beating your spouse?"

57.  Beware of questions that require a choice between alternatives elected by the questioner, such as, "was the light red or green?"  If appropriate, answer "neither" and wait for the next question.

58.  Beware of questions that purport to summarize or rephrase your earlier testimony.

59.  Beware of compound, multiple, vague or ambiguous questions.

60.  Beware of questions about what "might have," "could have," or "must have" happened.

61.  Beware of questions that use absolutes like "never" and "always."

62.  Don't answer with absolutes like "never" and "always."

63.  Be assured that it is proper that you prepared and discussed your testimony with the prosecutor.

64.  Don't answer questions about a document until you have read the document.

65.  Take as much time as necessary to read documents that you are questioned about.

66.  Don't assume the document you are shown is real. Check it. Look at dates and signatures. Make sure all the pages are there. Don't identify it unless you are positive.

67.  Make it very clear the source of your information.

68.  A defense attorney is not your friend.

69.  Know the difference between cross and direct.