Testifying in Court

[msglenn]

The issue of testifying in court is really a complex issue. As stated several units are non law enforcement and not classically trained in the nuances of how to prepare for and present testimony in court settings. However, several dive teams have never been called upon to testify in their underwater activities as the court system simply didnt know how to address what teams did. Testimony needs were based on the savvy of the prosecuting or defense attorneys knowledge. As a career law enforcement officer and investigator, I have testified hundreds of times in local and federal cases. However, in hundreds of underwater investigations I have been involved with only twice have myself or other divers been called in to present recovery testimony. Currently the training in courtroom tstimony is lacking nd what is out there is poor at best. However, several companies, like ERDI, have begun addressing the professional non diving aspect of public safety diving, including court room admissibility and chain of custody needs. What divers need to keep in mind is that every recovery dive they perform is in fact a potential evidentiary dive and documentation is key. Simple dive logs will never be enough. Dive teams need to approach all scenes with a forensic perspective, documenting the scne, topside evidence, photography and sketching as well as performing the exact same actions underwater. For teams that do not have a law enforcement background the documentation they create will assist in presenting information should they be called to testified.

 

[Sevrum]

I have a little different perspective to this topic, as I work as a prosecutor, and have for the better part of the decade I've been a lawyer.

The key points to testimony are well covered by msglenn's previous post, particularly the points about documentation. That is especially important when physical evidence is recovered or documented in situ.

In cases I've done that involve scenes (crime scenes or evidence recovery scenes) a diagram or overall photo of the scene that help relate the evidence collected or documented (or the witnesses recollections) has made testimony much easier for the witness and much easier to follow.

 

[ItsBruce]

I had the good fortune to have a very litigious client who spent a ton of money conducting studies on how to make a witness the best witness he or she can be. Here are several points:

1. Arrive at court at least an hour early. If you are late, you will not be in a good frame of mind for giving your best testimony. If you are in a hurry to get to court because you are worried about being late and get a ticket, you will not be in a good frame of mind for giving your best testimony. If you roll through a stop sign or enter an intersection after the light has turned red, you will invariably be observed by a juror in your case and that will impair your credibility.

2. When you take the witness stand and the clerk asks if you swear or affirm that you will tell the truth, etc., respond clearly, slowly and confidently "I do." If you rush or drop your voice, the jury will wonder if you really do.

3. When you are first asked your name, say it clearly, slowly and confidently. Be proud of who you are and of the fact you are going to tell the truth.

4. Unless the judge or clerk or an attorney specifically instructs you to look at the clock on the wall or at your watch NEVER EVER look at the clock or your watch. Doing so tells the jury you are in a hurry to get done with testifying and that you are in a hurry because you are not telling the truth.

5. Be as respectful of the attorney on the other side as of the one on "your side." It tells the jury you are not biased, which makes you more believable.

6. Answer questions posed by the attorney for the other side in the same style as you answer questions posed by the attorney on "your side." You do not want the jury to view you as biased.

7. If you've discussed your testimony with the attorney on "your side" and you are asked if you did so, proudly state that it was important that the attorney on "your side" knew what you had to say, so of course you discussed what you were going to say. Only an idiot would not want to know what his or her witnesses had to say, so capitalize on that the jury would expect.

8. If giving a truthful answer necessitates that you say "yes" or "no" and then give an explanation, give the explanation before saying "yes" or "no." Otherwise you may get cut off before you get to give the explanation.

9. The general rule is do not verbally spar. You are on the attorney's home court, so even if you don't get verbally beaten up right away, you are likely to be verbally beaten up.

10. If your answer requires you to make multiple points, start your answer by saying that. Otherwise, you may get cut off without having sand what you need to say.

 

[ka5ysy]

As Joe Friday said: "Just the facts". Suggestions I make to anyone I am schooling on courtroom techniques, based on my 32 years in the trenches as an attorney:

1. You absolutely cannot play word games with an attorney. Trying to do so will end up making you look foolish, probably piss off the judge, and the jury (if any) will ignore everything you say. Resist the temptation even when the attorney questioning you is a complete idiot. Yes, some are, and the jury or judge will determine that quickly without your input. Stay professional and it will work out.

2. As noted previously, take complete and copious notes, at the time of your dive, recovery or evidence collection. Whatever is not written down did not happen, and trying to add to something not in your report will open the door to impeachment and discrediting your testimony. "I forgot to put it in" is not a good excuse in court! Many people testifying make the mistake of not answering the specific question asked. If the attorney questioning you asks a question, answer only what he asked and do not add to it or "clarify" what he asked. You may feed him/her information on a line of questions that they had not thought of. Cases have been lost doing this.

3. Photos of the particular activity are worth 1000 words. Video is cheap these days, and even underwater camera gear is reasonable for any agency. It is also quite helpful to write a report when you look at what you did, and match the report to the video.

4. Remember that underwater operations should be a "code red" situation for you. The activity can be as dangerous or more so than any traffic stop. PSD's die regularly forgetting this. On all body recoveries, I have a policy that I will never put a live diver in jeopardy to get a dead body if the conditions are not perfect. Wait until the situation gets better. Most of the time the body comes to us anyway. Evidence recoveries work the same rule, and I prefer to send the ROV for a look or grab in many instances. Document such decisions in your report.


5. If you have to hand-write a report, by all means write legibly or print clearly (think of first-grade printing!) I cannot tell you how frustrating it is to try to decipher bad handwriting! Use a computer if you can, and for heaven sake use the spell checker !!.

6. A favorite trick of mine is to ask someone on the stand a question which they then answer. I then stare at them quietly for up to a minute or so. Most of the time, the person will become uncomfortable and start talking again and feed me a lot of great stuff most of which makes for good impeachment material. If the attorney is staring at you%2

 

[pantheraba]

You guys are good..thanks for taking the time to pass along some tips.

 

[WJL]

This is from my perspective as a trial lawyer for the last 30 years. A witness in court should never hesitate to admit that she does not know something if that is what the truth is. There is always SOMETHING that the cross examining lawyer can bring up that a witness doesn't know the answer to, even if it is trivial or irrelevant. An inexperienced or unsure witness often feels compelled to supply an answer to every question put to them. This can lead to big problems for the witness, when they get led off further and further from what they actually do know for sure. This is not like taking an exam at school! You do not get dinged for saying "I don't know" if that is what the truth is. In fact, the best witnesses, including the best experts, cheerfully admit what they don't know. It actually enhances their credibility and makes it much more believable when it comes to what they DO know about.

 

[wendellnope]

Colleagues,

I think it would be helpful for anyone who already has a list of questions for the prosecution (to establish the Diver as an expert) to post them. These "Voire Dire" questions are very helpful to have ahead of time. I'd like to see, for my purposes, the questions either listed here or sent privately to me. I know it would be helpful for me to review them and add meaningful questions to our list.

I am the Trainer for the Utah Dept of Public Safety Dive Team. We have now aided in the investigation of several homicides but none have begun litigation as yet. Thanks.

Sgt. Wendell Nope
Utah DPS Dive Team
801-209-5790 cell
wnope@utah.gov email
Wendell Nope Police Diving Web Pages

 

[Hallmac]

5. Be as respectful of the attorney on the other side as of the one on "your side." It tells the jury you are not biased, which makes you more believable.

6. Answer questions posed by the attorney for the other side in the same style as you answer questions posed by the attorney on "your side." You do not want the jury to view you as biased.

8. If giving a truthful answer necessitates that you say "yes" or "no" and then give an explanation, give the explanation before saying "yes" or "no." Otherwise you may get cut off before you get to give the explanation.

9. The general rule is do not verbally spar. You are on the attorney's home court, so even if you don't get verbally beaten up right away, you are likely to be verbally beaten up.

10. If your answer requires you to make multiple points, start your answer by saying that. Otherwise, you may get cut off without having sand what you need to say.

I found that in the above situations, number 8 specifically, a simple prearranged agreement with the prosecutor often allow me to answer the question exactly as asked. Any Question worded in a way I felt the answer would or could be skewed or misleading I would pause a second and look at the Counsel asking the question, and answer them without explanation.

This would give the prosecutor the chance to note the question and redirect. This allowed me to appear professional and unbiased. From the judge and jury prespective I simply answered the questions asked of me without trying to cover my backside.

During the redirect they could ask me for a more detailed answer or explanation to bring the information back into line with the case, if, they felt it was necessary. After 20 years I don't recall ever being left to hang out to dry or looking crooked.

With all the information the prosecutor is handling and the level of mental games played, I found most of them appreciated the assistance. It gave them time to let their mind wander a touch so they stayed sharper or ahead of the game.

 

[WJL]

Colleagues,

I think it would be helpful for anyone who already has a list of questions for the prosecution (to establish the Diver as an expert) to post them. These "Voire Dire" questions are very helpful to have ahead of time. I'd like to see, for my purposes, the questions either listed here or sent privately to me. I know it would be helpful for me to review them and add meaningful questions to our list.

I am the Trainer for the Utah Dept of Public Safety Dive Team. We have now aided in the investigation of several homicides but none have begun litigation as yet. Thanks.

Sgt. Wendell Nope
Utah DPS Dive Team
801-209-5790 cell
wnope@utah.gov email
Wendell Nope Police Diving Web Pages

Wendell,

Prosecutors, like all trial lawyers, are generally a prickly lot, and have their own ways of doing things in court. Any experienced prosecutor has qualified many witnesses as experts, using her own pet questions, and she may not welcome advice from you on how to do that. However, most prosecutors will probably be grateful to get some help from you about what exactly a PSD is, what training and experience you have had, classes you have attended, certifications you have received, dives done, training sessions performed, and scenes or incidents investigated. You should also let the prosecutor know about your standards and protocols that you adhere to, and what records you have of what was done at the incident in question. If there is any equipment involved, explain it to the prosecutor. She may know all about radar guns and breathalyzers, but have no idea what a side scan sonar is or how it works or what it can and can't do.

Bear in mind that most of the time you appear in court as a PSD, you are actually a kind of hybrid witness - you are both an expert and a fact witness. You are an expert in PSD by virtue of your training and experience in an area outside the knowledge of the average person. That is essentially the definition of an expert for court purposes. But you are also a fact witness - you are going to tell the jury about important facts in the case that you have personal knowledge of due to your observations and actions at the scene of wherever it was you responded to.

Experts are allowed to give opinion testimony, plain old fact witnesses are not (beyond common everyday subjects). So the prosecutor will want to establish that you are an expert in some particular area before asking you to give an opinion about it. Before the prosecutor asks you, for example, how long the body was in the water, or if the engine was running when the car went into the river, first you are going to have to establish that you are qualified to give such evidence. But even if you are not qualified or are not asked to give opinions, you will certainly be asked about what you saw and did when you fished the body out of the water or discovered the car in the river under the bridge.

Here are some foundational elements related to expert testimony:

Qualifications

• The witness has specialized training in the field of his expertise.
• The witness has acquired advanced degrees or certificates from educational/training institutions.
• The witness is licensed or certified in a particular field.
• The witness has practiced in the field for a substantial period of time.
• The witness taught courses in the particular field.
• The witness has published books or articles in the particular field.
• The witness belongs to professional organizations in a particular field.
• The witness is or has been an officer or director of professional organizations in a particular field.
• The witness has previously testified and been qualified as an expert before a court or administrative tribunal on the particular subject to which he is asked to render an opinion.

Basis for Opinion

• The expert's testimony is based on sufficient facts or data.
• The testimony is the product of reliable principles and methods.
• The witness has applied the principles and methods reliably to the facts of the case.

Foundation for Opinions

If the expert is testifying to something he perceived prior to the hearing, at the hearing or from something to which he has firsthand knowledge, the foundation requirements are:

• the witness observed the fact or event,
• when the witness observed the fact or event,
• where the witness observed the fact or event,
• what persons were present,
• how the witness observed the fact or event,
• a description by the witness of the facts observed,
• an opinion rendered from those facts.

The Statement of the Expert's Opinion

• the expert states that he has an opinion.
• the expert states that the opinion is based on a "reasonable certainty" or "reasonable probability" within his specialized field,
• The witness states his opinion.

Explanation of the Expert's Opinion

• the expert explains the opinion.
• the expert explains the significance of each basis for the opinion.
• the expert demonstrates how each basis contributes to the opinion and/or supports his opinion.

If you testify as an expert, you can expect to be challenged as to any or all of these points by the opposing attorney. Your qualifications as an expert may be challenged in the middle of your direct examination with voir dire questions, before you are permitted to give your opinion (e.g. Marissa Tomei being questioned by the prosecutor in My Cousin Vinny as to her knowledge of auto mechanics). During cross examination, after your direct testimony is over, everything about your opinion is open to question (e.g. Joe Pesci's questions to the FBI tire expert in the same movie).

 

[jreed]

Hi Guys, Dunno if I belong on this thread. I was a volunteer EMT for 20+ yrs and a recreational diver. Involved in a wrongful death suit and was witness for the dive company. Long story short, the dive masters asked us to write a statement afterwards for the Coast Guard. Kept a copy. As a civilian testifying for first time, kinda scary. But having a statement to refresh myself and being honest about what I did and what I saw kept me from being grilled as they did others. Good practices. One never knows what can happen on vacation let alone what you folks do for a living! :cool2: