Administrative Interviews and
5.5 Testifying and the Preparation for Testimony
All fact finders must be willing and prepared to testify. Witness testimony is a criti-cal component of our legal system. Its use is common in both criminal and civil proceedings. Regardless of how compelling some piece of evidence may be, its value can always be affected by testimony. For this reason, witness testimony is one of the most important elements of any proceeding. However, witnesses can only testify to what they have observed directly through the medium of their senses: sight, hearing, touch, taste, or smell. With few exceptions, evidence that is opinion is not admissible. It is, in part, for this reason that reports should be factual and objec-tive. Generally, witnesses may testify only to facts, not to their effect or result, or to their conclusions or opinions based on the facts. Accordingly, fact finder testimony should not contain opinions or conjecture. The rules of evidence, however, make two major exceptions. The first involves the lay (ordinary, nonexpert) witness and the second applies to the expert (specialist) witness.
5.5.1 Lay Witnesses
The lay witness may express an opinion on matters of common observation where an opinion is the only logical way to convey the information. These opinions are permitted only concerning subjects for which the average person has considerable experience and knowledge. Some examples of matters of common observation, in
which an opinion may be expressed by a lay witness, are physical properties, such as weight, size, approximate age, race, color, emotional state, physical state, and approximate speed of a vehicle.
5.5.2 Expert Witnesses
Expert witnesses may testify as to their opinion on evidence. An expert is a person skilled by means of education, training, and experience in some art, trade, or science to the extent that he or she possesses information not considered common knowl-edge among ordinary people. Expert testimony is not proof, but rather evidence that can be accorded its own credibility and weight by the judge and any other trier-of-fact. Expert witness testimony helps the trier-of-fact understand things that are not common knowledge or otherwise known only by experts in a particular art, trade, or science. An example might be testimony regarding the functioning of disk brakes in an automobile, how an airfoil produces lift, or the intricacies regarding how a proper investigative interview is conducted. Experts also write reports. Their reports are the basis of their testimony at trial. Thus, at trial, they may not offer opinions that were not expressed in their report.
5.5.3 Hearsay Rule
Hearsay can be considered a rumor or secondhand information. It is information that has been told to a witness by someone else. Hearsay evidence is generally con-sidered not admissible or competent, and applies to verbal statements and written material as well. Thus, an investigative report and the statements provided by inter-viewees are considered hearsay. Therefore, for these documents to be admissible, they must be entered into evidence (at trial) by way of a witness who is competent and credible. For our purposes, it is either the investigative interviewer or the sub-ject. Remember, hearsay is anything that is not within the personal knowledge of the witness or interview.
There are several exceptions to the hearsay rule. One is the dying declaration.
A dying declaration is evidence resulting from an act or declaration made under a sense of impending death that relates to the declarant’s cause of death. In order to be admissible, the victim must have believed that he or she was dying, must, in fact, have subsequently died, and must have been competent at the time the statement was made. Spontaneous declarations (res gestae) are declarations that are spontaneous utterances or statements made in response to some sudden and shock-ing event, such as an accident or horrific crime. Testimony of a witness who heard the defendant exclaim, “My God, I shot him,” might qualify under this exception.
Another exception is former testimony. This is testimony given by a witness at a prior proceeding. This exception requires that the person who gave the prior testi-mony is unavailable.
Additionally, the past recollection recorded exception is a memorandum or record concerning a matter about which a witness once had knowledge, but now has insuf-ficient recollection to allow her to testify fully and accurately. Investigators refer-ring to their notes is a good example of past recollection recorded. Business records that are created and maintained in the normal course of business can be exceptions as well. Examples include records of a telephone call, invoices, check registers, bill-ing statements, and personnel files. The last exceptions are confessions and admis-sions. Fact finders may testify about a person’s confession or any admission made by another person—his interviewee, for example. Because confessions and admissions are acknowledgements of guilt, the presumption exists that it is not likely that a person would voluntarily confess unless guilty.
Investigators are often called into court or before other official bodies to present testimony, and juries are often influenced by their appearance and demeanor on the witness stand. Upon being notified of an impending court appearance, the inves-tigator must ensure that the case is complete and a final report prepared. A pretrial conference with the attorney calling him as a witness is to prepare the investigator and organize the facts and evidence in the case. The investigator must provide the attorney with all reports and other relevant documents or exhibits in order for the attorney to assess the strengths and weaknesses of the case.
5.5.4 Presenting the Evidence
Before testifying, the fact finder should be aware of the probable line of question-ing he will face and how all of the evidence he has gathered will be introduced and used at the trial. The fact finder’s appearance in court is an important component of his preparation.
How the jury will perceive the investigator’s credibility will be determined in part by her appearance, demeanor, and professionalism. To that end, John Dempsey recommends the following:1
◾ Know precisely when and where you will be testifying.
◾ Do not discuss anything about the case in public.
◾ Treat people with respect. Your professionalism, politeness, and courtesy will be noted and remembered.
◾ Do not discuss your personal life, official business, biases, prejudices, likes or dislikes, or any controversial subjects in a place that they can be overheard.
◾ Be on time.
◾ Dress and groom appropriately.
◾ Avoid contact with defense (opposing) counsel.
5.5.4.1 Testifying
At trial, the fact finder will be subjected to direct examination by the attorney calling them, and cross examined by the opposing attorney. Direct examination is the initial questioning of a witness (or defendant) by the attorney who is using the person’s testimony to further his case. Cross examination is questioning by the opposing attorney for the purpose of assessing the validity of the testimony. Some of Dempsey’s more useful advice for witnesses includes:
◾ Be prepared to be “sworn” or take an oath before testifying.
◾ Bring any notes or reports to the witness stand and refer to them when necessary.
◾ Answer with a simple “yes” or “no” whenever possible.
◾ Hesitate before answering a question in order to permit an objection.
◾ Always ask that a question be repeated if it is not understood.
◾ Don’t offer opinions or make statements about a defendant’s character or reputation.
◾ State only facts that he knows.
◾ Never fabricate, exaggerate, or speculate.
5.5.4.2 Dempsey’s Ten Commandments of Courtroom Testimony2
1. Relax and be yourself
2. Answer only questions that are before you 3. Refer to your report only when allowed 4. Paint the crime scene just as it was
5. Be ready to explain why you are remembering details in court if they are not in your report
6. Avoid using jargon or unduly difficult language 7. Avoid sarcasm
8. Maintain your detachment 9. You don’t need to explain the law
10. Explanation of what you said is possible on rebuttal
5.5.4.3 Impeachment
At trial, a witness that does not testify consistently, or alters his testimony from time to time and is contradictory, will not be credible. The opposing attorney will attempt to cast doubt on the witness’s credibility and discredit him. That process is known as impeachment. Several methods are used to impeach or attack the testi-mony and credibility of a witness. They include:
◾ Showing that the witness’s previous statements or conduct of the investiga-tion are inconsistent with the witness’s testimony.
◾ Showing that the witness is biased or prejudiced for or against the defendant.
◾ Attacking the witness’s character by revealing prior criminal convictions or other irrefutable characteristics.
◾ Showing the witness’s capacity to observe, recollect, or recount due to mental weakness, a physical defect, or influence of drugs or alcohol.
◾ Showing that the witness is in error; that the facts are other than as testified.
Tip: The best testimony is accurate, truthful, and in accordance with the facts.