By Kevin Carlin
Since I started working in criminal district court, I’ve been noticing some patterns when it comes to witnesses. I have found consistently that law enforcement witnesses such as patrol officers and crime lab technicians who are called to testify are often among the worst when it comes to not waiting for the full question. They simply never receive any training in how to testify, even though it is a part of their job, and the attorneys don’t seem to give them much preparation on what to expect in the courtroom. I recently had a particularly stubborn witness from the crime lab who inspired me to create a document that could be distributed to these witnesses in advance of their testimony, with the hopes of making the process of testifying easier on both the witness and the reporter. What I ended up with is probably not appropriate to be presented in any official capacity, but I thought my fellow reporters might get a kick out of this tongue-in-cheek treatment.
EVERYTHING YOU NEED TO KNOW BEFORE YOU TESTIFY IN COURT
First of all, it sounds like congratulations are in order! You’ve been called to testify as an expert for your work. You’ve worked hard, and it’s finally paying off. You can now say to yourself, “I’ve made it.” First things first, call your mother and make her proud. Did you call her? Did she beam with pride? Hmm. Maybe it’s time to consider that her expectations are unreasonable. It might be time to stop worrying about making her proud and start thinking about making yourself happy.
Testifying can be exciting but also scary, so we have put together an FAQ to help you avoid looking like a total spaz on the witness stand. There’s no question that you’re an expert in your field, but just having the knowledge doesn’t do anyone much good if you’re not able to get the information to the jury; and if there’s one thing we know about juries, it’s that they won’t listen to a spaz. Juries want showmanship, pizzazz, and some hard liquor, but the last one is out of your control.So let’s get to it. You’ve got questions; we’ve got answers. Fire away!
1. Who are the various people in the courtroom?
First there’s the man or woman sitting behind the bench wearing the black robe. This is most likely the judge, but don’t rule out the possibility that it’s a grim reaper or a student who got lost on the way to graduation. If it turns out to be a collector of souls, don’t be afraid. Your time has come, so just go calmly. You won’t make it far if you try to run, and you don’t want to show up to judgment day all sweaty and out of breath.
The twelve angry men sitting in the little box are the jurors. They may not all be men anymore. Nowadays women are allowed to be angry as well, but it is still a requirement that at least one of the twelve be Henry Fonda. Their anger is really just a manifestation of the shame they feel for not being smart enough to get out of jury duty, which really is one of the easiest things to do. I mean seriously, how hard is it to pretend to hate either cops or defense lawyers? It doesn’t even matter which. You’re probably not crazy about either group to begin with, so just pick one and pretend to hate them already.
The folks asking you loaded questions are the attorneys. Don’t even get me started.
Finally, the woman sitting in front of the judge with the little typewriter is the court reporter.
It’s her job to pretend to type everything you say. She’s really just making an audio recording of the proceedings, but the court reporter union is strong enough that we can’t fire her, so she gets to just keep sitting there pretending to type on her little machine.
2. You mentioned that the court reporter is a female. Are there any male court reporters?
3. Are men just not good at court reporting?
Well, a large part of the job is listening, and you know how men are when it comes to listening.
4. Ouch. Okay, so I’m feeling pretty nervous about the public speaking part of this. I’ve heard that speaking in public is the number one fear in America, even more so than death.
That’s not really a question, but I’m happy to address it. That statistic has become a bit exaggerated. It really depends on how you measure fear. Truthfully, the fear of antique furniture probably comes in just ahead of public speaking. Billy Bob Thornton is the only person who has this phobia, but his fear of old lamps is so intense that it tends to outweigh the millions of people who are by comparison only mildly afraid of giving a speech. You had a nightmare that you gave your PowerPoint presentation in your underpants? Boo freaking hoo. You should see the slime-covered, tentacle-sprouting Victorian loveseat that chases Billy Bob through the land of slumber every night.*
5. I think to try to hide my anxiety over having everyone staring at me I will talk in a very rapid, panicky manner.
This is a pretty common knee-jerk response to being nervous about testifying, but there are several reasons that it’s a bad idea. First and foremost, it doesn’t disguise your anxiety. Quite the opposite, in fact. It makes you look very nervous. Think of the confident people you know, the goodlooking rebels who play by a set of their own rules, and think about how relaxed and unhurried their speech is (Captain Jack Sparrow, Peyton Manning, the Pillsbury Doughboy on a good day). Then think about the meth addicts you know and how twitchy and fast-paced their speech is (Gary Busey, the guy at the bus stop who calls himself “Bubble Man,” the Pillsbury Doughboy on a bad day). Finally, ask yourself whom you want to resemble, especially while there’s still a question as to whether there’s an angel of death in the room.
Secondly, remember the court reporter with the little machine? She really is writing everything you say. The audio recording thing was an inside joke that you wouldn’t get, so forget I mentioned it.
If you talk too fast, she will yell at you, and it will probably catch you off guard. Being reprimanded in front of the already-angry jury can be embarrassing, and this will just make you more nervous, causing you to talk in an even more panicked manner. It’s a vicious cycle.
However, the court reporter’s problems are her problems, not yours, so forget about her. You just worry about you. The real people you need to speak clearly for are the 11 angry gender-neutral persons in the jury box and Henry Fonda. The jury needs to understand you, and it has been consistently found that if you talk too fast for them to follow along with you, they will write you off and go back to staring at the public defender’s shapely legs/the DA’s handsome jawline/the bailiff’s taser, depending on several personal factors that are outlined at great length in any number of other pamphlets and FAQs, though not always correctly.
It’s important to remember how angry/ashamed the jury is. They’re already looking for an excuse to daydream about being anywhere but stuck in a box with ten other angry people and Henry Fonda. Don’t give them an excuse to ignore you. If you mumble or talk too fast, you’ve lost them. If, on the other hand, you take a breath and speak calmly and clearly, you might get them to listen to upwards of half of what you have to say.
6. Won’t I bore them if I talk too slowly?
Look, nobody said you have to talk like Al Gore or Ben Stein’s character in Ferris Bueller’s
Day Off. Don’t act like you’re taking diet pills either. Do you want everyone to think you’re on uppers? One good trick is to pretend you’re ordering Wendy’s through discount Radio Shack headset speakers to a 16-year-old taking your order while texting her friends.
7. The court reporter asked me to slow down. Does that mean I should look at her funny for a second and then resume speaking at the same speed I was before?
No. Believe it or not, she really does want you to speak a little slower, for all of the reasons listed above.
8. Sounds good. I’ll keep talking at the same speed.
I’d really rather you didn’t.
9. She stopped me again, only this time she seemed a little frustrated with me. I think I’ll just shoot another dirty look her way and hope that’s the end of it.
I’m not sure you’re getting it.
10. Okay, I think I’m enunciating pretty well now. The attorney is almost to the end of the question he’s asking. Should I begin my answer now?
Absolutely not. You should wait until he’s completely finished with his question. If two people are talking over each other, it makes it difficult for the jury to follow, and they will go right back to daydreaming. Even the boys stranded on an island with no adult supervision in Lord of the Flies knew that. They got themselves a conch shell so that only the holder of the conch had the floor to speak. It turned out to be a poor choice since the beach was littered with hundreds of shells. Pretty soon everything turned to chaos for them, but it was a good idea other than that.
If you absolutely cannot control yourself to not speak over other people, try bringing a conch with you to the witness stand. A courtroom, unlike a desert island, is likely to not have any other seashells in it, so it should work out better for you than for poor Piggy. If you don’t have a conch handy, a tennis ball, or hand grenade would work in a pinch. (Author’s note: Please do not bring a hand grenade.)
11. That’s fine, but since I know what the rest of this question is going to be, I’ll just start my answer now.
But what if you’re wrong about what you think the question will be? What if the sneaky defense attorney pulls the following trick on you:
Q: So, when you test the blood samples, the first thing you do is put the sample into–
Q: –your mouth; correct?
A: No. Not my mouth. I thought you were going to say the mass spectrometer, but because I didn’t wait for the full question, now the jury thinks I put the blood samples in my mouth, and a genocidal murderer is going to walk free because of me. I feel very silly right now.
Q: As well you should.
A: Do you think I’ll get fired for that?
Q: I’m asking the questions here.
12. I don’t think that’s really going to happen. I’m just going to go ahead and start my answer now.
Don’t say I didn’t warn you.
13. The court reporter yelled at me. That seemed kind of harsh.
Yeah, that’ll happen.
14. Why does the judge let her get away with being so stern?
Well, the good news is that makes it much more likely that that is a judge and not a ferryman to the underworld. Most court reporters tend to not bother reprimanding dead people.
15a. I’m unsure of the next answer. If I maybe just mumble something or trail off, will the jury just assume I–
No. Mumbling doesn’t help anybody. It especially frustrates the court reporter, for several different reasons. As it turns out, speed is only one of several variables that govern whether a court reporter is able to keep up with the proceedings. A loud and clear speaker who talks fast is much easier to keep up with than a slow mumbler. This is because if the reporter needs to stop and think about what you said, she will fall much further behind than if she doesn’t need to process the information. As long as you speak in clear and complete sentences, she can go very fast.
As a demonstration of this, set a timer for ten seconds and then try to memorize the following list of 11 words. Ready? Go: Perhaps the laws of physics cease to exist on your stove.**
Did you get all 11? Good job! Now reset your timer for ten seconds and try to memorize the following list of nine words. Ready? Go: behavior or turpentine prosperity squirrel if inconsolable domesticate interim.
How many did you get that time? If you got more than four, you blew the curve.
15b. –know what I’m talking about?
See how it feels?
16. I’m asking the questions here.
* You probably should not really see it.
** My Cousin Vinny (Lynn, 1992).
Kevin Carlin, RPR, CRR, is an official court reporter in Longmont, Colo. He can be reached at firstname.lastname@example.org.