Top Ten Tips for Testifying in a Criminal Defense Case


Regardless of whether you’re preparing to testify in a criminal defense case on your own behalf or on someone else’s, you may be feeling nervous and unsure about your role. Preparation and knowing what to expect when you’re on the witness stand can alleviate some of your anxiety and lead to more successful testimony.

The attorneys at Berry Law work closely with clients and witnesses in Omaha criminal defense cases to review the details of their testimony and prepare them for the questions they may be asked so they aren’t caught off guard. During the review process, your defense attorney may cross examine every aspect of your testimony, including relevant evidence and documents to help you become comfortable with that line of questioning.

Although it may feel like the attorney is picking on you, it’s easier to practice tough lines of questioning with your own attorney first so that you’ll feel more prepared in front of an audience. If you have been called as a witness in an Omaha criminal defense case, here are some tips to follow:

Prepare for Your Testimony

Since long periods of time can pass between an event and the trial, it’s a good idea to take stock of what you remember about that time period. Before taking the stand, picture the scene, who and what was present there and exactly what occurred.

Taking the time to refresh your memory can help your recall of events and facts when you’re being questioned. You should also review any earlier written statements you provided to law enforcement at the time of the event. Go over statements and anticipated questions with your attorney before you testify.

Don’t Guess on the Details

When asked about small details that a person would not naturally remember, it’s okay to say that you don’t remember instead of making up answers. Particularly, if a question pertains to distance or time and you aren’t sure, state that your answer is only an estimate or respond by saying that you don’t recall.

Never agree with a prosecutor’s estimate of distance or time unless you have both independently reached the same conclusion. It’s better to say “that’s all I can recall” than to say “nothing else happened” in case you remember another pertinent detail of the case later.

Speak Clearly in Your Own Words

Avoid attempting to memorize a script of what you plan to say once on the witness stand. Memorization can backfire by making your testimony sound unconvincing or rehearsed to a judge or jury.

Be yourself and respond verbally to each question. Avoid nodding or shaking your head no. Speaking out loud allows the court reporter or recording device to pick up your responses for the record.

Present your testimony clearly, slowly, and loudly enough for the furthest-seated juror to easily hear and understand everything you say. Remember that although you are responding to the prosecutor’s questions, your answers are for the benefit of the jury.

Don’t Discuss the Case Outside of the Witness Stand

While you are waiting to testify, be aware that jurors could be present in the same public areas of the courthouse where you will be. Avoid being overheard by not discussing the case with anyone.

Right or wrong, jurors will also form impressions of the case based on your behavior and appearance outside of the courtroom, so conduct yourself accordingly. Show decorum upon entering and exiting the stand. Behave solemnly and avoid laughing or saying anything about the case until you are on the stand.

You should also avoid discussing the case with other witnesses until after the case is over, and refrain from asking other witnesses about their testimony.

Appearance is Important

Your appearance inside the courtroom is important. Wearing clothes that are overly dressy or too casual can be distracting to a jury while you’re on the stand. You want the jury to focus on what you’re saying, not your appearance.

If you are unsure of what to wear to court, consult with your attorney. Also, groom your hair and present an overall tidy appearance while you’re on the witness stand.

Avoid fidgeting, chewing gum, or other distracting behaviors while testifying. When you are called to testify, you will be sworn in. Stand up straight, pay attention to the clerk and say “I do” clearly when you take the oath.

Tell Your Truth

You have sworn to tell the truth. When questioned, avoid stopping to decide whether or not your answer will help or hurt either side. Admit true facts as they are questioned and answer questions to the best of your memory without exaggerating the details.

Avoid making overly broad statements that you may have to correct later or stating your opinion or information that you heard from another source unless you are directly asked. Don’t use phrases like “I think,” “I believe,” or “in my opinion” or attempt to argue a point, avoid questions, or spin the facts.

Tell it like it is, even if the truth contains some details that may hurt the defendant’s case. There will always be positives and negatives in every piece of testimony, and it’s more helpful to the defendant if your testimony is viewed as reliable by the judge and jury. After all, they want to know about the facts that you personally observed.

If a prosecutor asks about who else you’ve spoken to regarding the case, it’s okay to say that you’ve discussed it with police, federal agents, family members or other witnesses if you have. Saying no would likely be untruthful since most witnesses called to the stand have been questioned about their knowledge of or involvement with the case before being asked to testify.

Be Consistent

Try to ensure that any statements you make on the stand mesh with previous statements you’ve given in deposition testimony or other written statements like a police report to avoid the perception that you’re lying.

Since you are the defense’s witness, the defense attorney will question you first on direct examination. Direct examination allows the witness to tell the judge and jury information about the case.

The prosecution will go next by asking questions during cross examination. This phase of questioning is used by the prosecution to raise doubts about the accuracy of the testimony the witness provides. Inconsistencies in testimony can make cross examination much more difficult when the prosecutor is able to point out those inconsistencies in court.

Be very cautious in answering questions that begin with phrases like “Wouldn’t you agree that…?” You can be cooperative without being forced into giving inaccurate statements. Don’t allow the prosecutor to put words in your mouth, and don’t tell them what you think they want to hear if that response is not factual. Any explanation you give should be in your own words, not theirs.

The process of defense questioning the witness and then cross examination may be repeated several times until both parties feel that all statements have been sufficiently clarified. Continue to speak the truth and repeat your answers consistently as you know them to be correct.

Listen Carefully

Listen carefully to each question. Wait for the entire question to be asked before responding so that you are answering only the question being asked of you. If you don’t understand the question, ask to have it repeated or for clarification.

When appropriate, yes or no responses are perfectly fine. Consider the scope of the question and don’t go beyond the issue at hand when answering or volunteer additional information that isn’t called for.

While it’s okay to take your time formulating a response to ensure that you are giving thoughtful responses, avoid unnaturally long pauses when answering simple questions.

Correct Mistakes

If at any point you feel that one of your answers was not correctly stated, correct it immediately. It’s better to correct yourself than to have the prosecution later discover errors in your testimony.

If this happens, avoid getting frustrated and ask if you can make a correction to a previous statement. Provide an honest explanation for why you were mistaken. A jury will understand an honest mistake.

Keep Your Emotions in Check

Always follow the rules of the court. Witnesses should be cooperative, not antagonistic on the stand. While you’re being questioned, avoid looking to the judge or defense attorney for help answering.

Stay calm during cross examination, even when you feel that your testimony is being questioned. Remember that the prosecutor is simply doing his or her job, and if a question is improper, the defense attorney will object. Otherwise, if a question is asked and there is no objection, you must answer it.

A witness who seems angry, impatient or flustered can appear emotionally unstable or not objective. Be polite, even if the prosecutor appears to be rude. Attempting to include explanations for your answers can make you appear defensive and harm your credibility. An experienced prosecutor may interpret strong signs of emotion as weakness on your part and exploit it by trying to get you to lose your cool on the witness stand. The defense will likely give you the opportunity to explain anyway when it’s their turn for questioning.

Avoid speaking instantly when the judge interrupts your testimony or the prosecution objects to a question. Pause until the judge tells you to continue. Provide positive, confident answers, which will help you maintain the respect of the judge and jury.

Reach Out to Our Firm about Criminal Defense Case Strategy

To learn more about these strategies for boosting the chances or a positive case outcome, contact us online today. Our dedicated defense representatives are happy to discuss your case and offer knowledgeable, personalized advice.

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