Most criminal cases are settled in court before trial. Most criminal cases that make it to trial, are tried by a jury.
Jury Trials in California Courts are tried with twelve jurors. These jurors can be challenged by the Court or Counsel “for Cause”, if they show they are clearly biased or prejudiced one way or the other. Each side has the right to exclude a certain number of proposed jurors for any reason at all. Such exclusions are called “peremptory challenges.”
A criminal conviction requires the unanimous vote of the jury. If the jury does not vote unanimously for either “guilty” or “not guilty” then a “hung jury” or “mistrial” results. If there is a mistrial, the defendant is usually tried again or the case is dismissed.
Evidence at trial is not always presented in any logical or chronological order. Bits and pieces of evidence come in various ways. Each witness will have only parts of the puzzle. In those instances where witnesses are testifying on the same issue, contradiction is common, as each person’s abilities, perceptions and memories vary.
If you have to testify, you should remember that the jury and judge will be watching you from the moment you enter the courthouse and forming an opinion of you. Therefore, you must avoid undignified behavior such as inappropriate facial expressions or laughing, etc. at all times.
- You should dress conservatively and avoid extreme styles of clothing.
- Small children who are not a party to the action should not be brought to the trial unless requested by your attorney.
- Treat all persons in the courtroom with respect, even if you do not like them.
- Be serious and polite at all times.
When you are called to the stand, stand upright while taking the oath. Pay attention and say “I do” clearly, so that all can hear. When you talk, do not mumble or cover your mouth with your hand. Speak loudly enough so that the farthest juror can hear you easily.
- Talk to the members of the jury, if there is one. Look at them most of the time and speak to them openly and frankly as you would a friend or neighbor.
- Speak in your own words. Memorized speeches sound “pat” and unconvincing. Be yourself.
- Listen carefully to each question and make sure you fully understand it before you answer. Never answer a question until the question is completed and never answer a question you do not fully understand. Do not volunteer information.
Pitfalls to Avoid
Always remember that either as a party or a witness you have no purpose to serve other than to give the facts as you know them. You must give the facts if you have them.
Never state facts you do not know are true. Quite frequently you will be asked a question by an attorney and, in spite of the fact that you feel you should know the answer, you do not. Therefore, you will be tempted to guess or estimate what the answer should be. This is a mistake. If you do not know the answer, even though you would appear ignorant or evasive by stating you do not know it, you should nevertheless do so, because a guess or an estimate for an answer can show that you either don’t know what you are talking about, or simply that you are deliberately misstating the truth. Generally speaking, the adverse attorney is in a position to know what the answer should have been and it may be that he or she asked you the question because they knew you would not know the answer but felt you would be compelled to guess.
When at all possible, give positive, definite answers. Avoid saying “I think,” “I believe,” or “In my opinion” when you actually know the facts. But if you do not know or are not sure of the answer, say so. There is absolutely nothing wrong with saying “I don’t know”. You can be positive about the important things without remembering all the details. If you are asked about little details that you do not remember, just answer that you do not recall.
Do not exaggerate. Be wary of overbroad generalizations that you may have to retract. Be particularly careful in responding to a question that begins, “Wouldn’t you agree that . . .?” Note also that statements like “nothing else happened” are dangerous; after more thought or another question, you may remember something else. Say instead, “That’s all that I recall,” or “That’s all I remember happening”.
Never attempt to explain or justify your answer. You are there to give facts as you know them. You are not supposed to apologize or attempt to justify those facts. Any attempt as such would make it appear as if you doubt the accurateness of your own testimony. Example: Do you ever consume alcoholic beverages? Answer: Yes. Not : Yes, but only at my Tuesday bridge party where we just drink a little white wine.
If your answer was wrong or unclear, correct it immediately. It is better to correct a mistake yourself than to have the opposing attorney discover an error in your testimony. If you realize that you have answered incorrectly, say “May I correct something I said earlier?” or “I realize now that something I said earlier should be corrected”.
Do not let the opposing attorney get you angry or excited. This destroys the effect of your testimony and you may say things which can be used to your disadvantage later. It is sometimes the intent of attorneys to get a person excited during his testimony, hoping that he will say things which may be used against him. Under no circumstances should you argue with the opposing attorney. Give him or her only the information which you have. That is all they are entitled to. Give him only the information in the same tone of voice and manner that you do in answer to your own attorney’s questions. The mere fact that you get emotional about a certain point could be to your opponent’s advantage in a lawsuit.
If an attorney or the judge begins to speak, stop whatever answer you may be giving and allow him to make his statement. If he is making any objection to the question that is being asked of you, do not answer the question until he or she, after they have made their objection advises you to go ahead and complete your answer. If your attorney tells you not to answer a question, then you should refuse to do so.
Tell the truth. The truth on a witness stand will never really hurt a litigant. A lawyer may explain away the truth but there is no explaining why a client lied or concealed the truth. The mere fact that you may have had an accident before of almost an identical nature or for similar injuries or that you may have sued or have been sued by other people at other times for similar claims, or even have a criminal record does not destroy the validity of your claim or defense. However, the deliberate concealing of such an action would be very damaging to your truthfulness at the trial and would hurt your case immeasurably.
The honest witness has nothing to fear on cross-examination. Some of the rules set forth above may make more sense, however, if you understand what an attorney tries to do on cross-examination. If your testimony has not been harmful to this case or if he thinks that questioning you further will prove fruitless or counterproductive, he may waive cross-examination or ask a few perfunctory questions. If, however, your testimony has been damaging to his client, the opposing attorney will want to argue to the jury that they should not believe you. To make that argument, he or she want to make it appear that you are a liar or that you do not know what you are talking about. In either case, the usual approach is to try to get you to say things that the attorney can show are not completely true. He or she will then argue to the jury: “Since the witness lied or was wrong on this point, his entire testimony is unworthy of belief”. Here are a couple of “trick questions” that attorneys will sometimes use:
- “Have you talked to anybody about this case?” If you say “No,” the jury will think that probably you are not telling the truth, because a good lawyer always talks to his witnesses before they testify. Simply say that you talked to whomever you did – the lawyer, the police, or anyone else.
- “Are you being paid to testify in this case?” The lawyer hopes that your answer will be “Yes,” suggesting that you are being paid to say what the lawyer who called you wants to testify. Your answer should be something like: “No, I am not getting paid to testify. I turned the subpoena fee over to my employer, and I will receive my usual salary.”
- Testifying for a substantial length of time is surprisingly tiring and can cause fatigue, crossness, nervousness, anger, careless answers, and a willingness to say anything in order to leave the witness stand. If you feel these symptoms, strive to overcome them, or ask the judge for a five minute break or to allow you to have a glass of water.