A Handbook on how to Testify in Court in a Colorado Criminal Trial
Learning How To Testify In Court In A Colorado Criminal Trial is not something commonly taught in high school or college it is nothing you will have to do on a regular basis but it may be one of the most terrifying experience you will undergo in your life. This lengthy article may be the kind of information you are desperate to have so that you can prepare yourself for your testimony. I offer it as a measure of instruction and comfort because I am well aware of the absence of preparation that most witnesses are given before they testify.
I specialize in Colorado criminal cases and criminal cases are different. They are the favorite subject of movies and television shows for a reason.
Before you testify, your lawyer should spend a great deal of time with you in the preparation of your testimony but they seldom do.. As tough as studying this article might be it could make the difference in a close trial and therefore have a permanent impact on your future life.A Handbook of Tips and Guidance For Testifying in the Colorado Criminal Courts I. How to Testify in Court in a Colorado Criminal Trial the Art of Testifying First and Always Listen to the Exact Question Asked and Answer That Question
We are not trained to listen we are trained to talk. Truly listening before talking is a skill that must be learned.
Never try to anticipate what the lawyer’s question is going to be. While you may be nervous, always take the time to carefully listen to the entire question. Lawyers have their own language if you do not understand the question and you attempt tp answer it you may give the wrong response and hurt your case.
Therefore never answer any question that you do not completely understand. ALWAYS ask to have the question clarified.The Leading Question the “Yes or No” Trick
Along with listening carefully to each and every question, beware of the leading question the so called “yes no” trap. Be VERY sure that EVERYTHING in a leading “yes- no” question is true before you answer yes and adopting the question as your answer. These questions often take the form of “Isn’t it true that” If you answer “yes” you are saying “yes every thing you just said is TRUE.”
If you are compelled by the judge to answer with a “yes” or “no,” then try to explain your answer with the judge’s permission “Judge, may I explain my answer.” Then be as brief and on point as you can be.
Also answer only what is asked. Take your time and do NOT volunteer information or give the questioner more of an answer than was called for in the question. Along those same lines don’t ramble or stray from the question asked.
Direct Examination is YOUR lawyer asking the questions cross examination is the opposing lawyer asking the questions. Don’t react become angry during either especially during cross.You are not the Whole Case
Sometimes witnesses are convinced that they have to “carry” the entire case in their testimony. ‘ Nothing could be farther from the truth. Witnesses don’t carry the burden of proof lawyers do. Witnesses are not “entitled” to or have a right to know what ultimate point the litigator is trying to make. A witness has no right to know the outline or theory of defense that a criminal defense lawyer is driving at .. Again nothing could be farther from the truth. If the lawyer is doing his or her job professionally the witness should have NO IDEA where the answer fits in that is why you should always tell the truth..So Next Always Tell the Truth
There is no such thing as the “right question” Don’t expect anything don’t try to anticipate the right question. Don’t accord to the lawyers any specific level of intelligence or plan. Don’t try to guess where they “are going with this.” Just answer accurately specifically and truthfully every question asked. Also get ready for an any number of so called “follow-up questions.”Again Always Tell the Absolute Truth and Nothing but the Truth
Even if your testimony conflicts with other testimony or evidence in the case the juries job is to decide who to believe. Remember 2 people witnessing the very same facts will often remember it differently. If there are no discrepancies in witnesses testimony then the witnesses have been rehearsed discrepancies to some extent are expected. Again, if all of the defense witnesses tell precisely the same story, it will look contrived and suspicious. So tell the truth as you know it.Don’t Embellish or Exaggerate Your Answers
“Tell the truth, the whole truth and nothing but the truth.” Do NOT embellish the truth to make your story sound more “believable.” If you are caught juries are not forgiving and will most often throw out or discount ALL of your testimony. Again the effects of getting caught in a lie can be devastating to your case.
Be sincere be straightforward be honest, and keep it simple.Never Answer a Question With a Question
Be direct and never appear evasive in your answers. Do not try to control the tempo the direction or the subject matter of the questions and answers. Let your lawyer determine how best to present the evidence OR defend you against unfair questions.
You may be asked the time an event occurred the answer is “1:00 pm” or “about 1:00 pm” or ” I don’t recall the time.” NOT “why does that matter”, or “I wasn’t wearing a watch” or “there was no way to know the time.”
No one NO ONE likes an argumentative or difficult witness or a witness with an attitude. If you appear to be that witness you will lose your case.The Shot Across the Bow When You Think You Have Something “To Hide”
If you know there was something you did that was “bad behavior” on your part and you know it is coming about to be opened up by the opposing lawyerit is better to accept responsibility for it acknowledge it and then be remorseful for it. If you lie about it or downplay the serious nature of your conduct you are making it much worse.
Lying about an obvious point denying the use for example of foul language or throwing a pot in anger when you are caught in the lie is substantially worse than the slight diversion from the impact of your words on the most important threads of your testimony.
If the judge or jury learn that you have been untruthful, it is likely that our entire line of testimony will at a minimum be tainted. Remember every “true fact should be readily admitted.” NEVER stop your testimony to try to “figure out” whether the answer will help or hurt either side. JUST TELL THE TRUTH it is much easier.If You Don’t Understand The QuestionYour Rights as a Witness
Finally be honest not arrogant NEVER answer ANY question that you do not understand. If you do not understand a question, politely tell the questioning lawyer “I don’t understand your question please rephrase it for me.”
The lawyer must ask questions that you can understand. Also “I don’t know” and “I don’t remember” are valid responses if they are truthful.The Critical And Not Well Understood Difference Between ” I Don’t Know” and “I Don’t Remember”
This is in the nature of a trap If “you don’t know” something you never did know it.
If you “do not remember” something at one point ou may have known it at some point but you do not remember it now. Don’t make this mistake.How to Answer Questions From the Cross Examining Lawyer
ALWAYS think before speaking You have the right to have a question repeated or explained in a way that you understand. It is YOUR RIGHT to ask that a question be repeated or explained. A professional in the courtroom will be only too happy to explain what he/she is asking you to answer.
Before answering don’t be afraid to take a thoughtful and a deep breath try to relax. If you become upset at any time during your testimony the opposing lawyer is scoring.. Never rush into answering the question .. Speak slowly and deliberately and always wait for the questioner to finish the question BEFORE you begin you answer. The questioner is likewise required to wait for you to finish your answer before asking another question if they don’t your lawyer or the judge is there to accord you that courtesy that right as a witness testifying under oath.
Remember always pause for a second or two before answering to give you the time you need to organize your thoughts, to fully consider your answer, and then to respond with accuracy. If you do you are less likely to make a serious mistake. Not only will noone question why you might want to just take a second before you answer an important question, everyone the jury, the lawyers and especially the judge, will appreciate your efforts to be accurate and truthful.Never Offer Opinions Or Conclusions UnlesS You are Asked to do so
Never draw conclusions or state opinions from the “facts” of your testimony.
As a “perceiving witness” not an expert witness (specifically called for their opinions) you may only testify to what you perceived. If the lawyers asking the questions wish you to state your opinion on something, they will ask you to do so. A witness is just that a witness and may testify only to the facts that they have witnessed. Sometimes a witnesses’s testimony is only one piece of a much larger puzzle and that is okay. Your “piece” is limited only to what you personally have witnessed.
Being a witness means that you have seen, heard, touched, or otherwise know something about a fact of the case that is relevant. Judges and juries need to hear all of the evidence about a case. Your testimony is one form of evidence for them to consider. Again you are asked to testify to only what you witnessednothing moreHow to Testify in Court in a Colorado Criminal Trial Some Rules About Technique Addressing the Judge
Address the judge as: “Your Honor.” or “Judge.” The Lawyers as Mr. X or Ms. Y. When you are sworn in, look at the jury and say, in a firm, confident and clear voice, “I do.” If you need to ask the judge a question, look at the judge and say “Your Honor” wait till the judge gives you permission before you ask the question.Always be Polite Don’t Argue With Anyone
Do not “spar” with the opposite side’s lawyer. Always treat each of the attorneys precisely the same. Juries reward politeness they respect that, and find you have more credibility if you are polite at all times. Take every opportunity to be “nice.”
Make no mistake if the opposing lawyer is unusually arrogant you may have to respond but be careful to do so in as polite a manner as possible. If the lawyer is outright rude to you you do not have to appear defenseless you must be polite but firm and answer appropriately.
Obnoxious lawyers are ultimately “punished” by jurors in deliberations. While it is NOT appropriate in fact it is counter-productive to respond with a crude or unruly answer, if you are polite and respectful, you will more likely be respected by the jury and they may try to “help you” in the verdict.More on Arguing With the Opposing Lawyer
While it may be easy to understand why you will dislike the opposing lawyer no matter how much anger you may feel you always remain civil, polite and respectful. Yaking the high road to the jury is a sign of strength, not a sign of weakness.
There are also great risks when you argue with the opposing attorney arguing with the other attorney will distract you from your goal clear cogent persuasive testimony! Your attempts to persuade the lawyer must supercede your need to be “right.” Losing it leads to exageration less than objective testimony and apparrent emotional instability.When You Answer Face the Questioning Lawyer and Direct Your Answer to That Lawyer
Some lawyers will instruct you to listen to the question and then direct your answer to the jury. This is unnatural and often makes the jury uncomfortable in my opinion. Always be polite and direct your answers to the lawyer asking the questions. If you turn to face the jury whenever you answer this method of responding may be interpreted by the juror is disingenuous and dishonest to them
The only exception to this rule is when you are specifically asked to direct your answer to the jury. (“Please explain to the jury why you did that..). If this happens it is by design so you may after hearing the question turn to the jury and direct your answer to them.
Again the “tennis match”take the question and turn to the jury in my opinionNever Guess and Never Estimate Unless you are Asked to do so
Never guess at your answer. This type of answer is not only inherently unreliable, the answer is most likely objectionable under the rules of evidence (unless requested by the lawyer and permitted by the judge) and would therefore be inadmissible into evidence. If you must guess always use terms such as “approximately” in answering questions about time measurements of time and distance.
In necessary use words such as “generally,” “slightly,” “frequent,” and “often” which will allow you to avoid being too specific and too absolute.
Also it is perfectly acceptable to answer “I don’t know” or “I don’t recall.” If you don’t know the answer, say that you don’t know. If you don’t remember, say that you don’t remember. Sometimes a great deal of time has passed between the day of the act and the trial. The jury will understand if you cannot remember all of the facts all of the details. Do the best you can to remember the incident, and testify ONLY as the information that you can recall.Try to not use Absolutes
Try always to avoid using words such as “always,” “never,” “all,” and “every time.” Yo may be inviting disaster unless you are “absolutely” certain that that type of absolute answer is the right answer.
Trial lawyers salivate when they hear “absolute” answers. When you speak in absolutes the opposing lawyer can always demonstrate that there are exceptions to the extreme nature of the answer. For example “I never ever use foul language” “I never ever lose my temper” and so on.. If the opposing lawyer “cracks” your statement you will lose credibility with the jury. Stay away from absolutes so that there is never a need to backtrack on your testimony.
Testimony such as “I don’t believe so” or “I do not recall that” as opposed to”I never said that” or “that never happened” is much more human. So don’t set yourself up for error.. Unless you are certain, try not to say “That’s all of the conversation there was” or “I am certain nothing else happened”.
Rather use terms such as, “That’s all I recall at this time,” or “That’s all I remember happening”. Sometimes another questions or something else you hear during the trial may “trigger” more thought that causes you to remember something else that was important.Try not to “Qualify Your Answers” Unless it is Necessary
If you qualify each of our answers with such answers as To the best of my knowledge,” or “To the best of my recollection,” you will weaken your testimony. You have been sworn to tell the truth the whole truth to the best of your knowledge and memory already. When you “qualify” your answers you weaken them. By answering in this way you appear to be hedging your bets -perhaps even stretching the truth. Keep your testimony as direct and as clear as possible.If you Make a Mistake in Your Testimony “Walk It Back” With Sincerity
Always admit a mistake cover ups especially if they are exposed by an excellent cross examiner are painful and destructive to your testimony. We are all human and we all make mistakes by honestly and quickly admitting an error in your sworn testimony you will most likely be forgiven. When you try to cover it up, or make excuses when you are caught juries like people everywhere then discount all of your testimony if the mistake is large enough.
When you have answered a question incorrectly, I recommend immediately BEFORE CROSS EXAMINATION OR DIRECT EXAMINATION continues further you say, “May I correct something I said earlier?” Catch it and correct it quickly politely honestly and the jury will understand.Never Memorize Your Testimony
If you are a witness whose testimony has been memorized or well rehearsed you will lose credibility with the jury. Certainly you may outline and think about your testimony and review it as much as necessary to feel comfortable but do not memorize it..Why Distracting Your Lawyer During the Trial can be Dangerous to Your Case
Trial lawyers almost by definition are multi taskers. Hey can listen to testimony take notes formulate questions and summarize in their minds how the testimony fits into or conflicts with their “theory of the case.” BUT you should not try to talk to your lawyer while a witness is testifying.
While you may be certain that what you have to say is important, the lawyer needs to focus 100% on the witness and then make “split-second decisions” concerning such things as objections, questions to ask on cross examination and the like. If you distract him or her even if your are just whispering it can mean losing track of the witness or missing critical testimony that has hurt your case.
I instruct my clients to write down their thoughts and then share them just before I get up to cross the witness.How to Handle Objections While you are Testifying Reacting to an Objection Made by the Opposing Lawyer
If either of the lawyers object make certain that you immediately stop talking, let the judge rule on the objection and then continue.
Stop speaking instantly when the judge interrupts you, or when an attorney objects to a question. Wait for the judge to tell you to continue before answering any further
If the other side asks a question that you think is objectionable, pause before answering and give your attorney a chance to object. If he doesn’t, you haveno choice but to answer the question.
On the other hand if either attorney objects, stop your answer and wait for the judge to tell you to proceed. Also NEVER try to squeeze in an answer because you may think that your answer will draw an unwelcome objection. If the expected objection is sustained, the judge will instruct you NOT to answer the question. If you have already squeezed it in, the judge will show pique reprimand you, strike your answer from the record, and then instruct the jury to ignore what you just said.
This will not help your case and will probably hurt it.How to Testify in Court in a Colorado Criminal Trial How do I Dress For Court What Should I Wear?
You should dress like any professional conservatively. You should wear good quality clothing.
At least as well as most of the other people who may appear in court. No loud colors if possible. You should be neat and clean with recently washed hair.
If you are comfortable in a suit wear itit not wear slacks and a nice pressed Polo shirt. No shorts, flip-flops, jeans (especially worn out jeans) or tee shirts. Minimal make-up. For women slacks or a skirt are appropriate and a blouse with sleeves or a jacket. No Bare shoulders.
Do not wear dark colored sunglasses anywhere on your body. No gum ever even if the lawyer is chewing it. No heavy jewelry or other distracting adornments. No indications of political or religious associations if possible which may trigger a prejudice in one or more of the jurors.
Dress as if you were going to a religious service.
Any flaw is exaggerated many times when you testify. Too casual in your dress and they will think you don’t care too dressy in your appearance and they will focus on how you look and not what you are saying or they will write you off as too snooty or arrogant.
On the witness stand and off you will never know what influences a juror. you will never know who is “sizing you up,” while you are waiting in the hall that is why you want to be conservative.
Some actual studies resulted in findings that blue for men and black for women are the most appropriate colors for “looking believable.”How to Testify in Court in a Colorado Criminal Trial the Non-Verbal Side of Testifying What is Your Body Language Saying to the Jury?
Always sit quietly next to your lawyer at the defense table especially when testimony is being taken. NEVER react with your body language to evidence that has hurt your case. Juries do not always fully comprehend the evidence that has damaged your case but if they suspect that it did your body language will communicate and confirm that for the jury.
Avoid folding your arms across your chest. It will make you look as if you are defensive.
Keep you hands away from your mouth this is a classic method of conveying distress and may also make you look as if you are lying.
Never mumble and always speak up and with total confidence. Sit up straight.
Do not rest your chin on your hand while you are speaking. Always speak at a normal and natural clip.
Never look to your lawyer when you are answering the opposing lawyers questions. This action will convey a plea for help and jurors interpret this as having damaged your case.
Respond orally to the questions and do not just nod your head for a “yes” or “no” answer.
Jururs are everywhere. Jurors may be present in the same public areas where you will be the hallway, the cafeteria, the areas outside the courthouse. That is the reason you MUST NEVER discuss the case with anyone inside the courthouse.
Not only must you be careful about jurors hearing you in the hall they are always watching you and your facial and other non-verbal expressions. Therefore always act as if you are completely serious, do not laugh, and control your emotions.Other Rules of Non Verbal Trial Communication
Never appear arrogant.
Avoid giving the answer to a question until the attorney has finished asking it.
Never allow yourself to be compelled to agree with false testimony or agreeing to incorrect statements of fact.
If your testimony is interrupted for any reason, stop talking. Never talk at the same time as another person in the courtroom.
Remove everything from your pockets or on from your person that “makes noise”
No gum, no sunglasses, no hats.. nothing that distracts the jury or lowers your caste.
Try to stay calm and not let the jury see you perspire.How to Testify in Court in a Colorado Criminal Trial Some “Traps” of Cross Examination a Look at Some Trial Tactics That may be Used by the Opposing Lawyer The Opposing Lawyer “Rattle You” Trap
A great trial lawyer will try to engage you in an argument he or she will try to force you to argue with him/her so you will lose your composure. Don’t fall for it maintain a polite demeanor and a calm disposition at all times.The Misstating Testimony Trap
Here the opposing lawyer will intentionally twist or even deliberately misstate your previous testimony and then try to get you to agree with the new version. Maintain your composure as this is where great preparation will make the difference. Do not become confused or disorientedjust listen to the question even if it is leading you (suggesting the answer forcing the answer at you) do not allow the opposing lawyer to put his words in your mouth.
The opposing lawyer may also try to force you to speculate guess or testify to things that you did not actually see, hear or otherwise experience or to “fill in the gaps” of your testimony by restating your testimony in ways and with questions and answers which were never specifically asked.The “You Left That Out” Trap
Here the lawyer will sometimes ask a variation of “Why did you leave that out of your testimony?”
It may be that you DID leave something out if you did and the lawyer is correct admit it immediately and answer truthfully. Saying that “I forgot,”or “That did not occur to me,” or ” When I wrote that I thought I had was as complete as possible.”The “Physical Intimidation” Trap
While most judges will NOT allow that a lawyer to come anywhere close to the witness stand lawyer will sometimes use glaring stares, harsh tones and other methods of physical intimidation to color your answer. Remain firm stand firm and look directly at the opposing lawyer when you answer his or her questions.The “Multiple Distractions Confusion” Trap
In this trap the opposing lawyer might try to get you to do two (2) things at once such as asking you questions while you are drawing a diagram. Or the lawyer might change the subject from something YOU want to address to something her or she wants to address before you are finished answering the first question in time.
Stick to your guns assert your rights as a witness face the attorney and answer the question and finish the answer you were giving. If the distraction means you did not hear the whole question, then say to the opposing lawyer “I did not hear all of the question you asked, please ask it again.”The “Constant Interruptions” Trap
Just like the above situation where a lawyer will interrupt your answer to their question by asking you another question, understand that if you are interrupted for ANY reason, you should stop talking and regain your composure then proceed.
On the other hand f there is not a question posed to you, say nothing more until there is.The “Legalese” Trap
Obvious trap if the lawyer uses words you do not understand do not be embarrassed and pretend you do understand them simply ask again politely if the lawyer could define the term for you.The “Nice Man” Trap
This is one of my favorites.. Here a lawyer treats you with the utmost respect. He gets you water asks if you are comfortable. What is happening is simple when the times comes for cross examination the witness is petrified by treating you so nicely you let your guard down and want to agree with him/her on every question. The lawyer will get you into a rhythm of “yes yes -yes” to the easy questions then before you know it they will trap you with the critical question and catch you off guard.
Here it is extremely important to listen to the entire question -understand it before answering it and not be misled by the “yes- yes -yes” kind of questioning style lawyers use to trap you into agreeing with themThe Phony Evidence Trap
This is a classic Perry Mason special the lawyer pretends to be reading to you from a document that is either blank or phony with the question “Is it not true that.” Know this your lawyer should have everything the other lawyer has on his table avoid the trap that “If it is on that paper, it must be true.” The document most likely will not have anything to do with your case.How To Testify In Court In A Colorado Criminal Trial What to Do Before Going to Court
Always check and recheck your clothing and appearance.
Review the case with your attorney. Review your records, Personal notes and reports, review the photos n the case, all video, all exhibits and other objects. Review the transcripts of any of the previous courtroom testimony especially your testimony.
Be on time.
Be totally honest with your lawyer as you prepare for the case. if you have ANY concerns now is the time to raise them. If you have fears about your testimony express them now before the trial.
If you have a “skeleton” in your closet, TELL your attorney BEFORE your court hearing so that s/he may evaluate it. There is nothing a Colorado criminal trial lawyer hates more than to be surprised during the trial by a fact you have failed to share.
Before every witness try to review in your mind the “loose ends” of this witness write them down and quietly share them with your lawyer.How to Testify in Court in a Colorado Criminal Trial
FINALLY before the trial starts, go into the courtroom and study it. Where is the witness chair located what is the path you need to take to get to the witness stand. This will help you look confident and in control as you walk directly to the stand in a forthright manner and be sworn and then to offer your testimony to the jury the deciders of your fate.
This Handbook barely scratches the surface of a complex and fascinating subject for the author H. Michael Steinberg but he offers it in the hopes that it will help you. “H” sincerely hopes that How To Testify In Court In A Colorado Criminal Trial will calm you down!
About The Author: H. Michael Steinberg Email The Author A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-227-7777.
If you are charged with A Colorado crime or you have questions about How To Testify In Court In A Colorado Criminal Trial, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.
H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.Helping Clients to Make Informed Decisions in the Defense of Colorado Criminal Cases
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Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,. and all the other cities and counties of Colorado along the I-25 Corridor on cases involving How To Testify In Court In A Colorado Criminal Trial.