HOW TO GIVE EVIDENCE IN COURT July 2005

HOW TO GIVE EVIDENCE
IN COURT
July 2005
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HOW TO GIVE
EVIDENCE IN COURT
Preparation
It doesn’t matter whether you have a lot of experience or
a little – you may find that the witness box is a lonely
place if you are not prepared for it. If you get it wrong it
is no good berating the prosecutor, the defence lawyer or
even the other witnesses.
They may have made some mistakes but
you are responsible for the way you give
your evidence and so much depends on you.
The courts will have expectations of you as
a witness and these expectations will rise if
you are a professional witness, i.e.
appearing in court on behalf of your
profession. Unfortunately however,
professional witnesses are very often simply
unprepared for the court experience.
Have you prepared for the experience of
appearing in court? Are you going to present
yourself as well as possible and give the
right impression? Will you appear to be the
professional witness that everyone expects
or will your nerves take over and affect your
credibility?
A survey of juries who listened to professional
witnesses giving evidence showed that many
were not as professional as they should be.
The majority appeared quite well organised
and well prepared but over half of the jury
members reported that a better impression
could have been made. In one Crown Court
four out of ten of this type of witness were
considered ill prepared and poorly organised.
So read on for some hints and tips on how to look
good, sound good and hopefully feel good after the
experience of going to court.
1
Recording of Documents
The way that you prepare for court begins with the
way you provided your evidence to the investigating
officer and how you recorded the evidence that should
prove or disprove the offence.
When you record your evidence, you should
be able to prove that the notes you made
were made at the time of the event or
shortly afterwards. If you can’t prove that,
the magistrates or presiding judge may not
allow you to refer to your notes, so make
sure your notes are timed and dated. The
best place to record your notes is in your
daily work records. This is the place to
record hearsay evidence (what other people,
not the suspect, have said to you). Write
down everything that is relevant. When you
subsequently make your statement the
investigating officer will guide you through
what is admissible to the court (as you will
not be allowed to refer in court to some
hearsay evidence).
A representative of the Official Receiver’s Office said:
“As it is often two to three years before a trial takes place, from
the point of view of my examiners I always advise them they
should re-read their reports as background before giving evidence.
I emphasise to them that they are not an “expert witness”
and therefore should be careful of expressing their opinions,
either in a statement or in court.”
To prevent abuse of process arguments it is very
important that books, records and their subsequent
listings are recorded accurately, with a clear audit trail.
2
Keeping Records
You must retain any documents that are relevant to
the investigation and reveal them to the investigating
officer, who in turn will tell the prosecution and
defence of their existence.
You then need to keep them for the defence
to examine if they wish, and be prepared to
produce them in any subsequent court
hearing.
It is vital that any documents relevant to the
investigation are not altered or destroyed. If
you allow this to happen you may have to
explain personally to a judge.
Expect your notes to be challenged by the
defence.
Be wary of relying on other people’s notes as
opposed to official records – you are relying
on how someone else has interpreted the
incident, rarely the same thing.
Don’t make the mistake of discussing your
evidence with other witnesses, either
before or after the court proceedings. The
defendant could appeal against the verdict
or the sentence and you may compromise
your integrity as a witness.
Never, ever, contact the defence, you must
go through the investigating officer and
prosecutor every time.
A good witness will be fully
prepared before the day of court.
3
Your Appearance
Technically your appearance is irrelevant and the court
should rely on the credibility of your evidence as
opposed to how you are dressed.
However, experience shows that there is no
way you will retain your credibility if you do
not present yourself well and create the
right impression. So much depends on how
you appear to the magistrates or to a jury,
particularly if you are appearing as a
professional witness. Looking at an extreme
example, if you are appearing in court on
behalf of the Official Receiver and turn up
dressed in jeans and a tee shirt, expect the
jury to make some assumptions about your
credibility!
Ask yourself this. If appearances don’t
matter then why are all officials of the court,
ranging from lawyers, clerks and ushers
through to those sitting on the bench,
dressed for the part?
Think about the sort of messages you are
giving others by your appearance.
If you can’t make the
effort then you aren't just
letting yourself down but
also the other witnesses,
including the victim.
Chris Duggan is the Chief Investigation Officer and Head of Profession for
Criminal Investigators for the DTI. He said:
“Even if you don’t intend to refer to your official notes in
court, but have told the investigating officer of their
existence, you must have them with you in court. My advice
to those attending court is to know your evidence
thoroughly. The more you can give your evidence from
memory, the more weight that carries.”
4
You may be met at the court by Witness
Service volunteers or by a representative of
the prosecutor but they will not be with you
throughout the day. If the prosecution is on
behalf of the DTI the law clerk allocated to
your case will introduce themselves to you as
soon as possible, explain the court procedures
and give you a guide of the court itself.
At the earliest opportunity identify yourself
to the investigating officer and to the
prosecutor. You will be given the opportunity
to read the witness statement you made
during the course of the investigation.
Other witnesses appearing in the case will
also be allowed to individually read their
statements. It is a great temptation to
discuss the case with these other people
but you must not do this. People who have
seen the same incident, heard the same
conversation or have been involved in the
enquiry will remember it differently and you
may become confused if you discuss it with
them. In any case, if it becomes apparent to
the court that you have compared your
statements or discussed evidence with each
other, then you will be discredited.
The Oath
Decide whether you take the oath or affirmation,
before you enter the witness box.
No matter how well you believe you know it,
always read from the card given to you. That
way, you will not fall into the trap of adding
“so help me God” on the end of your oath
(this is American and you will only be asked
to repeat the oath properly).
When you are sworn in, don’t rush it, or you
may sound insincere.
If swearing the oath, hold the bible (the New
Testament) in your right hand, at shoulder
height and begin impressing the magistrates
or jury with your honesty and integrity. If you
are affirming do not raise your right hand.
The oath is “I swear by almighty God that
the evidence I shall give shall be the truth,
the whole truth and nothing but the truth.”
People of different faiths will take the oath in
a way appropriate to their belief, e.g. a Jew
will use the Old Testament and a Muslim,
the Koran.
The affirmation is “I do solemnly, sincerely
and truly declare and affirm that I shall tell
the truth”. Christians may also choose to
affirm – it is just as credible as taking
the oath.
5
Giving Evidence
If it is the first time you have given evidence, let the
prosecutor know.
The prosecutor will tell you whether you will
be expected to give your evidence in full, or
whether they can take you through it with a
series of questions.
You will also be advised on which parts of
your evidence are not required to be heard
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in court. For example, during bankruptcy
proceedings when a person is compelled to
give an explanation to an Official Receiver
about where their assets are, very often that
evidence is not admissible in subsequent
criminal proceedings.
Arriving in Court
This can be a stressful time, particularly if you are
going to a court you don’t know.
The Witness Service volunteers offer an
opportunity to look around the courtroom
before the day of the trial and familiarise
anyone with the proceedings.
Make sure you get to the courtroom in good
time (with any documents or exhibits you are
expected to bring) and at least thirty minutes
before the case is listed to begin. Find out
which courtroom your case will be heard in
via either the list normally displayed in the
court foyer or by asking a court usher. At
many courts there is now a desk to which
you should report. They will check you in and
be able to tell you which court you are in.
Then find your case clerk, investigating officer
or prosecutor who is handling your case. All
criminal courts are now served by the
volunteers of the Witness Service who are
also available to help you. Familiarising
yourself with the courtroom and finding out
where you will stand to give your evidence
will help overcome any nerves you may have.
If you haven’t done so already introduce
yourself to the prosecuting lawyer or
caseworker who is supervising your case.
You will be found somewhere comfortable
to sit and kept up to date with the progress
of the case. Refresh your memory properly
by carefully reading your statement and the
notes that you made at the time
Making early contact with the prosecutor
will ensure you are involved in any decision
making about your case.
You will not be allowed in the court before
you give your evidence unless you have
permission of the court.
Robin Nelson has worked as a prosecuting and advisory lawyer for 18 years. He said:
“There are some witnesses who are excellent at giving
evidence but others, I am afraid, who quite clearly let
themselves and their colleagues down. Witnesses should
properly refresh their memories prior to going into the
witness box so that they are confident and convincing”
7
DTI Cases
The treatment the witness receives will depend on
whether the case is in-house or an Agent’s case.
In the majority of cases prosecuted by the
DTI, witnesses are not required to attend
court and give evidence. The offender will
either plead guilty or the evidence of the
witness will be read out in court. In any
event, a law clerk employed by DTI Legal
Services will contact witnesses for their
court availability. Following this the same
law clerk will inform the witness when and
where to attend court and keep them
informed of the progress of the case,
particularly if there are any delays.
Pat Ogan, Chief law clerk, said:
“It falls to the law clerk to put the minds of witnesses at
ease and make their appearance at court as painless and
pleasant as possible. He or she will deal with any problems
concerning the practicalities of getting to court and the costs
of doing so. We recognise that some witnesses can feel
intimidated at the thought of giving evidence and we will
explain the procedures involved to do everything possible to
put your mind at ease. If you have any concerns at all please
contact the law clerk handling your case.”
If you are not in court when the case is finalised you
will be sent a letter with the outcome and any
sentence imposed.
8
Giving Your Evidence
Speak Slowly
A number of people will be writing down
what you say, so wait for the judge or
magistrates to stop writing before you go
on. It is off-putting for someone to stop you
while you are in full flow but no one has
ever been criticised for giving his or her
evidence too slowly!
Look at the person asking you questions but
then, in a Magistrates’ Court, address your
replies to the magistrates.
Maintain Eye Contact
In a Crown Court address your replies to the
jury, even if asked a direct question from the
judge.
Initially, you may find this difficult, as you are
being asked questions from the prosecution
and defence but then replying to others.
However, this is the correct thing to do and
in doing so the defence will not find it so
easy to intimidate you, juries in particular
will be very impressed if you can keep eye
contact with them.
Remember that the magistrates or the jury,
even the judge, may not be familiar with the
jargon you use in the workplace. Don’t use
abbreviations unless their use is obvious.
You may appear pompous and you will be
stopped as you give your evidence in order
to explain what you mean.
When responding to magistrates, you may call
them “Sir” or “Ma’am.” It is rather oldfashioned to refer to them as “Your Worships.”
Magistrates are not usually legally qualified
and take legal advice from the Magistrates
Clerk (who sits in front of them). A
Stipendiary Magistrate is a barrister or
solicitor who sits alone in court and is now
known as a District Judge. They should be
addressed as “Sir” or “Ma’am.”
In the Crown Court, circuit judges and
recorders are referred to as “Your Honour”.
High Court judges are referred to as “My
Lord/Lady”. If in doubt ask one of the court
officials before you give your evidence.
Using Notes
You may only refer to your original notes if
you ask the permission of the court first.
The prosecutor will invariably ask you;
"When did you make the notes?" You must
be able to persuade the court that you made
the notes at the time of the event or as
soon as possible afterwards.
Try to remember the important parts of your
evidence without reading it and only refresh
your memory with the notes you made. This
is where your preparation will help you. If
you know your evidence inside out you will
come across as a more credible witness.
9
Cross-Examination
It is the duty of the prosecution to present the evidence
fairly and impartially. It is the duty of the defence lawyer
to test the accuracy and truth of that evidence and
advance their client’s case to the best of their ability.
If the case for the defence depends on
discrediting you or your evidence then be
prepared for that. Don’t get upset, or
pretend to get upset when it is inferred that
you are mistaken or even that you are lying.
Your duty and professional responsibility is
to give the court all the evidence available
and to do that objectively and independently.
Don’t set out to "get a result" and don’t
assume an offender is guilty before he is
proved innocent!
Don’t argue with the
defence and don’t try to
give clever answers.
You should anticipate that any lawyer
representing the defence in court is an
experienced professional who is well versed
in cross-examining witnesses. The defence
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may have a hopeless case which relies on
them discrediting prosecution witnesses.
Unfortunately in this situation their
questioning will be based on experience
which shows that some people rise to the
bait easily, become aggressive and angry
and appear unreasonable.
Likewise, be prepared for the defence being
inept.
You may be asked multiple questions – in
which case you should take them one at a
time and try and make it clear to the court
what is happening.
Be professional, always be polite and don’t
take cross-examination personally.
In a survey of witnesses nearly a quarter
said that they felt uncomfortable when
cross-examined. This may be explained by
the same survey showing that only 40% of
them had prepared for giving their evidence.
Useful Tips
You may find the defence tries to make you give a
"Yes" or "No" answer, perhaps to make you commit to
an answer which is misleading.
If you are being pressured to give a black or
white answer when a more detailed
explanation is required, don’t hesitate to turn
to the bench. Respectfully suggest that to
give such an answer would "mislead the
court." This gives the judge or magistrates
the opportunity to intervene and often you
will be allowed to give your full explanation.
In the same way, if your answer begins,
"Yes, but it was obvious that…" and the
defence cuts you off after the "Yes", ask the
court if you will be allowed to answer the
last question properly. Don’t stick to closed
replies such as "Yes", "No" or "I don’t know" if
it is obvious that a further response is
needed by the court – you will just appear
unhelpful and defensive.
When under pressure don’t embellish your
answers, particularly if you don’t have details
in your notes or cannot remember. You will
only fall into the traps set by the defence.
Don’t be too eager to please and start every
answer with "I believe". All that will happen
is that one of the lawyers, if not the judge,
will challenge you with "Did you witness that
or not?"
Gripping the witness box
Make sure you are standing comfortably, at
ease, with your hands behind your back or
loosely held in front of you. It is a mistake to
grip the sides of the witness box – it is too
easy to see your knuckles go white as you
grip it.
You may need to take heavy files or records
into the witness box with you. Don’t make
the mistake of balancing them on the side of
the witness box – if they fall off you will
never regain your composure!
Likewise, unless you want to risk the wrath
of the judge, don’t rest your file on his or her
bench without asking his or her permission.
If you don’t understand a question or forget
what was asked halfway through your
answer, say so and ask for it to be repeated.
If you are convinced that what you are
saying is the truth then don’t back down, no
matter what the defence say. On the other
hand, acknowledge that everyone
sometimes makes a mistake and don’t dig a
hole for yourself that you can’t get out of.
Remember that you are not the one on trial.
11
Following Your Evidence
Once you have given your evidence to the prosecutor,
been cross-examined by the defence, re-examined by
the prosecutor and it has been established that the
magistrates or judge have no further questions, you will
be thanked and asked to sit at the back of the court.
However, you may be required to be called
back into the box to be re-examined
his/her witnesses give evidence which
conflicts with yours.
If you wish, the prosecutor will ask for you
to be released from court so that you can
return to work. If you prefer you can sit at
the back of the court and watch how the
case progresses. You might not like what
you hear but be professional. Don’t sit there
shaking your head when the defendant or
Expect the defendant to give conflicting
evidence – otherwise they would be
pleading guilty!
Make sure that you stand if you are able,
when magistrates or a judge enters a court.
Everyone else will and you will look
discourteous if you do not.
Intimidation
On rare occasions the
accused will attempt to
make contact with a
witness, either in person
or through a third person.
This is serious because it is a criminal
offence to intimidate (frighten) a witness or
anyone helping the investigating officer
during an investigation.
If you are harassed or
threatened in any way
before, during or after a
trial, you must report it.
Get in contact with the investigating officer
immediately or tell the prosecutor at court. If
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either is unavailable, tell a court usher.
If you are worried about meeting the
defendant, other witnesses, their friends or
relatives or anyone else involved in the
hearing or trial, then please share this with
someone. You can speak to the Witness
Service at court, the DTI investigator or the
police at any time. There should be a
separate room made available where you
can wait before and during the hearing.
Special Measures for the
Vulnerable
Special measures can be made available for either a
vulnerable or intimidated witness.
A vulnerable witness is one where the court
believes extra help is needed because the
witness has limited understanding, or a
physical disability or physical disorder, or
suffers from a mental illness. Intimidated
witnesses are those who are likely to suffer
because they are afraid or distressed at
giving evidence.
The special measures mean that:
• the witness box is screened so that the witness and defendant can’t see each other;
• the witness sits in a room away from the court and gives evidence via a live TV link;
• the public gallery is cleared except for one member of the Press;
• the defence questions the witness before the trial. A recording of this, in response to
the Prosecutors evidence-in-chief, is then played to the court.
IF YOU HAVE ANY CONCERNS PLEASE TALK TO SOMEONE ABOUT IT.
Please read this document in conjunction with the DTI
booklet “Witness in Court”
Comments?
If you have any comments, feedback or suggestions on how we can improve this
publication, please contact, Glenn Wicks, Nottingham Legal D (IOS) on 01159 507013 or
E-Mail [email protected]
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Printed in the UK on recycled paper with a minimum HMSO score of 85.
First published February 2005. Department of Trade and Industry. www.dti.gov.uk/
© Crown Copyright. DTI/Pub 7907/2k/07/05/NP. URN 05/1233