TIPS FOR GIVING EVIDENCE IN A CRIMINAL CASE
If you are called as a witness to give evidence in a criminal case, there are some basic things you should know. Based on our many years of trial experience, we have put together some tips on answering questions when giving evidence in a criminal case.
USE A LOUD AND CLEAR VOICE
When witnesses give evidence in Court their evidence is electronically recorded. A transcript is then prepared from the recording. You therefore need to make sure you speak in a loud and clear voice so what you say is properly recorded. In addition to this, you want to make sure the jury and other persons in the courtroom can hear your evidence clearly.
TELL THE TRUTH
Always tell the truth when giving evidence. There are a few good reasons for this. If you lie and this is discovered, you risk being charged with an offence of perjury and being prosecuted yourself. If you lie, there may be another witness, or witnesses in your trial who know the truth. There may also be documentary evidence (e.g. documents, recordings, CCTV footage) that tells the truth. In this situation your credibility will be destroyed, and the jury may not accept anything else you say.
LISTEN TO THE QUESTION AND DO NOT RUSH WHEN ANSWERING IT. THINK BEFORE YOU SPEAK
You need to ensure you hear the question and know what you are being asked before giving your answer. Do not give your answer until you have heard the question. If you only hear part of the question, your answer may be different had you had heard all of it. While you will be nervous when giving evidence, it is imperative you do not rush in answering a question. There is nothing wrong in taking your time to think about the question before answering it. It is best you give the correct answer, rather than rushing in, to then change your answer later. If you do this, the jury may doubt the correctness of the second answer you give.
IF YOU DID NOT HEAR THE QUESTION, OR YOU DID NOT HEAR ALL OF IT, ASK FOR IT TO BE REPEATED
There is nothing wrong with asking for the question to be repeated. You can say something like “Do you mind repeating the question please” or “Sorry, I didn’t hear all of what you said, can you please repeat the question”. You want to make sure you are 100% clear about what you heard. If you are mistaken about the question you are asked, this may lead to you providing an incorrect answer.
IF YOU DO NOT UNDERSTAND THE QUESTION, ASK FOR IT TO BE REPHRASED
Sometimes lawyers ask questions that make little sense. If during your evidence you are asked a question you do not understand, there is nothing wrong with asking for it to be rephrased. You may respond by something like: “Sorry, I am not sure what you mean, do you mind rephrasing the question please?”.
DO NOT GUESS THE ANSWER TO A QUESTION
If you do not know the answer to a question you are asked or cannot remember, do not guess. It is better to say “I don’t know” or “Sorry, I cannot remember”. There may be a witness or document with the answer. If you give an answer, and it turns out to be incorrect because of some of the evidence, this may call into question your credibility.
ONLY ANSWER THE QUESTION YOU ARE ASKED
Only answer the question you are asked. Do not provide any other information. When witnesses give more information or go on tangents, this can often lead to problems.
IF YOU HEAR AN OBJECTION TO A QUESTION, STOP ANSWERING IT
In criminal trials, there are strict rules regarding evidence, and what evidence a person can give. It is common during trials for the prosecution and defence to object to questions asked of a witness. If an objection is made when you are answering a question, stop and wait for the Judge or Magistrate to deal with the objection. Once the Judge or Magistrate has made their ruling, you will then be able to determine if you can answer the question.
THE JUDGE OR MAGISTRATE IS CALLED “YOUR HONOUR”
If the Magistrate or Judge directs a question at you, you must refer to them as “Your Honour”. Do not refer to them as “Sir”, “Madam” or anything else.
ANSWERING QUESTIONS DURING EXAMINATION-IN-CHIEF
GIVE AS MUCH DETAIL AS YOU CAN
When you give evidence during your examination-in-chief, try to give as much detail as you can. A witness’ evidence in chief is an opportunity for them to tell their story. When the lawyer asks you questions during your examination-in-chief, they are constrained by the types of questions they can ask you. They can only ask you open ended questions like “Why”, “When”, “How”, “Who”, “What”. The lawyer cannot ask you a question that suggests the answer. Therefore, you need to help the lawyer by answering with as much detail as possible. The questions they ask you should prompt you about the topic they want you to give evidence about. After you have answered a question, the lawyer may ask you additional questions to get more information from you. The lawyer will have your witness statement and will have a goal in mind about what evidence they want to get from you during the trial.
ANSWERING QUESTIONS DURING CROSS-EXAMINATION
DO NOT ARGUE WITH THE LAWYER ASKING YOU QUESTIONS
Sometimes during cross-examination the person asking you questions may try to ruffle your feathers/roll you up. They may try to do this to throw you off your evidence or to make you look bad as a witness. When giving evidence you want to appear as a calm and collected person telling a story. You do not want to come across as an argumentative person because this is unlikely to be liked by the jury. If you give your evidence calmly, despite what the lawyer is attempting to do, your evidence will be more persuasive.
IF YOU CAN ANSWER IN A “YES” OR “NO”, DO IT!
If you can respond to the question with a “yes” or “no”, do it. However, if you need to give an explanation/qualify your answer, do it. The reason is, because in some situations, responding with a simple “yes” or “no” may not answer the question. During cross-examination, lawyers sometimes will get the short “yes” or “no” answer and then try to quickly ask another question. They do this to try to prevent the witness from fully answering the question.
An example of when you may provide a simple “yes” or “no” answer, but want to qualify it is as follows. You may be asked “Did you report the incident to police straight away?”. You could easily answer the question with a “no”. But, you may feel you need to explain why you didn’t report to police straight away. For example, you may say “No, I didn’t, because my dog had just been hit by a car and I had to take him to the vet”.