Taking the Witness Stand:Effectively Speaking On Behalf of Children In The Courtroom

Amy Fite Prosecuting Attorney, Christian Countyafite@christiancountymo.gov

Rebeca Navarro-McKelveyAssistant Prosecuting Attorney, St. Charles Countyrmckelvey@sccmo.org

General Guidelines for Witnesses

• Listen to the question asked and answer ONLY that question

• It is okay if you don’t know the answer-don’t speculate/guess

• Correct the prosecutor, the defense attorney, the judge if they misunderstand your answer

• If you don’t understand a question, or part of the information in question is incorrect, let the examiner know

• Portray confidence at all times

Goals During Testimony

• Want to make an impact on judge or jury

• Want to communicate your part of the story clearly and persuasively

• Want the judge/jury to trust you and have confidence that what you are saying/ explaining is accurate

•MIND CONTROL

• VOICE CONTROL

• BODY CONTROL

• IMAGE CONTROL

Stop, Prepare, then Testify

• Preparation begins when you are subpoenaed• Review your report, if you wrote multiple reports

review them all• Review property receipts for any evidence that

you may have seized or records you prepared• If you find evidence that needed to be

forensically tested, but was not, alert the PA and discuss this issue.

• Be aware that your investigation may have uncovered new or different information, and a supplemental report may be needed.

• If you are a 491 witness be sure you have turned over any and all statements of the child pertaining to abuse

• When documenting events use the same process every time

Meet in person, if possible

If you are subpoenaed by defense, State should still prepare you

Be familiar with pre-trial rulings that limit your testimony

Ask PA what your role is in the case

Ask the PA the purpose of the hearing

Discuss handling of objections as clues for answersDiscuss any errors in your reports that need to be corrected

Prepare for questions that maybe asked by defense

ANYTHING YOU TAKE WITH YOU ON THE STAND IS SUBJECT TO REVIEW BY THE DEFENSE

Pre-Testimony Prep Meeting: Clearing the Road for Effective Testimony

Exhibits

You should look at the evidence you seizedReview how you labeled it

Has there been additional writing added at the lab?

Location where you sealed the evidence should be untouched – the lab should have opened at a different location so your markings are identifiable

Likely will be asked to open an evidence bag if it is unique – such as drugs

If exhibits will be admitted go over the foundation for admission

Practice using demonstratives in an effective, not distracting manner

Be sure that audio or video evidence is clearly audible, if not send it for enhancement

VS.

If you made a mistake identify it, own it. and move on

REPORTS ARE NOT TRANSCRIPTS

Types of Pre-trial and Post-trial hearings

• Preliminary Hearings• Grand Jury Testimony• Motions to Suppress Evidence/Statements• 491 Hearing for Admission of a Child’s Hearsay

Statement• Protective Custody Hearing• Depositions• Sentencing Hearing

DEPOSITIONS Purpose

Legal purpose – defendant has right to discovery– Uses of deposition– discovery and

inconsistent statements (IMPEACHMENT) What are they?

– Defense counsel’s efforts to gather more information

– Defense counsel asks questions of you regarding the work you’ve done and your background

– Prosecutor will be there (but is NOT your lawyer)

– Court reporter will be there• What if they ask questions you are

uncomfortable with- personal questions, etc.?

DepositionsPrepare

– Review on your own whatever records you prepared or have as part of your case file– Medical Records, CAC report, police report, DSS reports, etc. Talk with prosecutor prior to deposition

– Ask if the deposition will be video-recorded

• Rules– Answer aloud (no shaking of the head)– Answer with words (no “uh huhs”)– Answer the question that is asked– Make sure you understand the

question before your answer• At the end you will be asked if you

want to review

The “Un” Deposition You may be contacted by the

defense attorney who wants to talk to you“Off the record”

Should you do it? What are your options?As an endorsed witness, defense has a right to talk with youHaving such conversations off the record leaves everything you say open to interpretation and risks your statements being taken out of context

Feel free to say to them “I’m happy to talk with you, but if you want to talk off the record, I’d like the State to be there. Please contact the prosecutor to arrange the meeting.”

Lil’ Wayne Deposition Testimony

ANGRY DEPONENT

Cross Examination: The Defense Attorney’s Chance to Testify

Expect leading questions-Statement that is turned into a question by inflection or tag lines

May be easy and simple or confrontational

No matter how vicious the attorney, maintain same posture, tone, and demeanor as you did on direct (staying calm and professional is crucial)

Assuming that you are being asked “yes or no” questions, if it is not possible to answer that way, ask “May I explain”-if the attorney says no he/she appears unfair

Avenues of Attack During Cross Examination

Don’t get on the “Yes” train, but do talk to the hand.

• Technique of using a rapid series of questions designed to getting you to answer “yes”

• So important to really listen to each question and think before answering

• Example in DUI case

• Technique used to control a witness that is non-responsive or that is responding in a way that the examiner doesn’t like

• Always talk to the hand, even if the face doesn’t care

CROSS EXAMINATION OF FACT WITNESS KENNEDY

RAPE TRIAL

CROSS OF DOMESTIC VIOLENCE EXPERT IN JODIE ARIAS TRIAL

CROSS EXAMINATION OF POLICE COMPUTER FORENSIC EXAMINER IN

ARIAS TRIAL

Re-Direct/Re-Cross • Prosecutor will be able to question

you again on re-driect– Should be limited to what brought

out in Cross Examination• Sometimes it’s not necessary (if cross

goes REALLY well)

– This is when the witness and the prosecutor can clear up any issues brought up by defense during cross

– This is when you might expect questions that may seem obvious to you

• Defense will be able to question you again (Re-Cross)– Should be limited to what brought

out in Re-Direct

Direct Examination • Expect open ended questions in

Direct• Questions designed to lead to a

narrative answer• The witness must tell an interesting

story (especially the fact and blended witness)

• Initial questions will be about background – Name– Occupation and how long– Education/Training– Experience– Current Assignment– Supervise others– Called to scene

Direct Examination of Blended Witnesses

• EASY QUESTIONS – Number of cases have you

seen/treated dealing with …– Procedure a victim, patient, child, etc.

goes through when arriving at your facility

– Records• You may be asked to lay the foundation

for their admission– Do you make a record of your

examination– At or near the time of your examination– Kept in the ordinary course of business– Have you had a chance to review the

records pertaining to …– Fair and accurate copy – Custodian of Records

After testifyingFollow-up with the prosecutor and ask any questions you have about what happened.

Think about whether there were answers you wish you could have answered differently and why.

If the prosecutor confused you or you felt unprepared for something let the prosecutor know.

You should be notified of the outcome of the case if you are not call and ask about the case.

You Rocked!

THANK YOU FOR PROTECTING OUR

CHILDREN