TRIAL BY FIRE:
Winning Your Case from the
Witness Chair
Robert H. Giles
Senior Attorney
NDAA’s National Center for
Prosecution of Child Abuse
703-519-1656
rgiles@ndaa.org
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No pressure but . . .
Testifying is “bringing it home”
– It is the culmination of your work on the scene
– It is the explanation of your work with the
child to a jury
– It is the way that the criminal justice system
makes this child and others safety
– . . . And it is riding on you.
Acknowledgement I:
You Did Not Choose Your Career so that You Could Spend
Hours Waiting to Testify on Your Scheduled Day Off
Acknowledgment 2:
Cnn.com
msnbc
People Magazine
Taking the Stand is Nerve-Wracking for Everyone
Acknowledgment 3:
Defense Attorneys (and prosecutors) Can
Be Exasperating
In fairness, a prosecutor can lose
your case
Lack of preparation
Poor jury selection
Not knowing the law
Underestimating
strength of the
defense
Failing to prepare
witnesses
LAY vs. EXPERT
WITNESS

Lay witness: testifies as to what the
witness saw, heard, felt, smelled,
etc.

Expert witness: renders an opinion or
gives the jury information that helps
them evaluate the evidence.
WHO CAN BE AN EXPERT?

Detective specializing in physical abuse
investigation.

Psychologist/psychiatrists.

Rape crisis/sexual assault counselors.

Teachers.

Social Workers/CPS.

School Guidance Counselors.

Docs, Nurses, SANE.
Areas of Expertise
•Delay in reporting (Stowers, 690 N.E.2d
881).
•Child development issues.
•Recantation (Stowers).
•PTSD (State v. Cripps, LEXIS 4174 9/8/98).
•Memory & suggestibility (State v. Gersin,
668 N.E.2d 486 (1996)).
•Appropriateness of interview techniques.
QuickTime™ and a
Microsoft Video 1 decompressor
are needed to see this picture.
Combined Lay/Expert
Witness
There are situations where a witness who is
presenting expert testimony can provide
evidence to the jury that is case specific in in
nature
– Excited utterance
– Present sense impression
– Statements for purposes of medical diagnosis or
treatment
– Then existing mental, emotional or physical
condition
DO JURORS NEED
YOUR EXPERTISE?
Over 50% of jurors believe children easily manipulated into
making false reports.
More than 1/3 believe the typical reaction of a “real victim”
would include resistance, crying for help, or Many jurors think
abuse occurs primarily outside the home.
Many jurors expected “real” abuse cases to produce medical
injuries.
Morrison & Greene, Juror & Expert Knowledge of Child Sexual Abuse, 16 Child Abuse &
Neglect 595 (1992)
JURORS PERCEPTIONS
ON CHILD CREDIBILITY
Regan and Baker, The Impact of Child Witness Demeanor
on Perceived Credibility and Trial Outcome in Sexual
Abuse Cases Journal of 13 Family Violence 2, 1998
81% -- Crying
67% -- Fear
43% -- Confusion
30% -- Anger
JURORS PERCEPTIONS
ON CHILD CREDIBILITY
Quas, Thompon and Clarke-Stewart, Do Jurors “Know
What Isn’t So about Child Witnesses?, 29 Law and
Human Behavior 4 (2005)
71% believe that children are sometimes led by an
adult into reporting that they have been sexually
abused when they have not
70% believe that most children can be manipulated
into making a false claim about sexual abuse
57% believed that a physical examination will almost
always show whether or not a a child has been
sexually abused
51% believed that children who have been sexually
abused will not deny it if asked by a trusted adult
CSI Effect
Shelton, Kim and Barak A Study of Juror
Expectations and Demands Concerning Evidence:
Does the “CSI Effect” Exist?, 9 Vanderbilt J. of
Entertainment and Tech. Law 2 (2006)
46% expected to see some kind of scientific
evidence in every criminal case
22% expected DNA in every criminal case
73.4% expected DNA and Scientific evidence in
every sexual assault case
The Danger of
Witness Testimony
Any witness can turn a
strong case into an acquittal
Civilian witnesses
Victims
Professional witnesses
Police officers
And just like mere
mortals…
Professionals get nervous
Professionals forget things
Professionals may have difficulty conveying
the facts in court
Goal of Today
To insure you have every resource at your
disposal so that you know how to give
truthful testimony in an effective manner
every time you are in court
Our Goal for Today re:
Cross-exam
Understand the purpose of cross-exam
Understand the various techniques the defense will
use
Respond appropriately, thoroughly & accurately
Gain confidence in your ability to testify
Preparing to Testify While Doing Your
Job
Think of testifying as quiz in which
your memory of the scene is
challenged
Preparing to Testify While
Doing Your Job
Your work:
The Judge / jury needs to know what it was that you
did and what you observed
Things that you fail to do / resources that you fail to
use make you an easy target on cross-examination
Preparing to Testify While Doing
Your Job
Your reports:
Part of the test: If it’s not in the
report, it did not happen
Preparation for the test: Your report
is the best refresher for your
memory
Preparing to Testify:
Doing the Work
Think like a defense lawyer!
Preparing to Testify:
Doing the Work
Treat each case as a potential jury
trial in the making
How will this look to twelve citizens
who could not get out of jury duty?
What would a juror want to know?
What kinds of questions do your
friends ask?
Sample of a cross where
a vital fact is not in your
report
First . . .
Today, you have told this jury that
you also remember that my client
spontaneously said “I never meant
to hurt her, but she cries all the time
and I was just so tired.”
Then . . .
And it was 8 months ago that you
made this arrest, right?
Moving in for the Kill
The Report is the best
evidence:
You prepared a report close to the
time of the events in question,
right?
Moving in for the Kill
So the events were more fresh in
your memory than they are today,
right?
Moving in for the Kill
There is no limit as to how much
information you can put into your
report, right?
Moving in for the Kill
And if you need to go back and make
a supplemental report, you can do
that too, right?
Deer in Headlights
And you would agree with me that
your report does not make any
mention of this statement that you
claim my client made, right?
Significance of Absent
Facts
Judges:
– Statements not in the record
don’t exist
Juries:
– Many of these people write
reports for a living
– Their livelihood depends on the
accuracy of reports
Conclusion:
– Omitted facts affect your
credibility
So . . .
If a defendant said it, put it in your
report
If a crime victim said it, put it in
your report
If a non-offending parent said it,
put it in your report
If the information relates to an
element of the crime, put it in your
report
So . . .
If the information was at all a
factor in your arrest decision /
decision to remove a child or make
a finding / decision to follow a
course of treatment / a factor that
made you believe this child or this
witness, put it in your report
If it’s one of those intangible,
indescribable moments where
your “Spidey Sense” is alerted,
document that thing
Be Specific in Your
Reports
Not so much … :
– The mother gave pretty much the same
version of events as the child
Be Specific in Your
Reports
YES!!! :
–The mother told me that when she
walked into the bedroom and saw
her boyfriend with his pants down
beside her daughter’s bed, she
knew something was wrong
Be Specific in Your
Significance:Reports
–If the witness later changes her
version of events, you will be hard
pressed to recount what the
witness actually said
–Exact words lend credibility to your
testimony
Excited Utterance Rule FRE 803(2):
A statement relating to a
startling event or condition made
while the declarant was under the
stress of excitement caused by the
event or condition.
TRANSLATION:
If they say something while still affected
by assault, what they say maybe admissible
in court through you.
Pay special attention to their demeanor crying, shaking, anger, shouting
Anything to show they are still under the
stress of event.
PUT DESCRIPTIONS,
NOT CONCLUSIONS, IN REPORTS!
Preparing to Testify:
After You Do Your Job
but Before You Take the Stand
Reviewing Your Case
Acknowledging Case Weaknesses
Accepting the Defense
Know Yourself as a Witness
Trial Prep: Knowing Your
Case
Know your report
Knowing key facts
Knowing where the defense is going
–Don’t you feel better about driving
when you know where you’re
going?
Knowing Key Facts
Know why it is that you are being
called as a witness
–What is the prosecution’s (or
defense’s) purpose in calling you
Know the chronology of events
–Remembering the order of
events will help make your
testimony to make sense
Knowing The Defense
What is the defense?
Who are the defense
witnesses?
What observations /
findings did you
make that contradict
the defense theory?
Are there facts that
the defense attorney
wants to get from
you?
Realistic Trial Prep:
Jury Trials
Meet with Prosecutor
– Make sure that everything
about the case has been
disclosed to the prosecutor
– Advise prosecutor of
anything that might be
helpful in case presentation
– Advise prosecutor about
your comfort level with
testifying
Successful Trial Prep
Know your report
Be conversant in speaking about the case
Practice on family and friends
What is the defense?
What tactics does defense attorney use?
Let’s be friends
Courtroom showdown
YES/NO train
Know Your Case Weaknesses
Inherent Weaknesses
– Lack of witnesses
– “Weak proof”
Defense-based
weaknesses
– Good attorney
– Believable defense

Jury Appeal
Weaknesses
– No “CSI Appeal”
– Unsympathetic victim
– Yes it’s illegal, but why do I
care?
Why Does It Matter?
Knowing your case weaknesses in
advance of taking the stand
–Deceases the likelihood of
appearing nervous
–Better able to explain your
decisions
–May assist prosecutor in
gathering needed trial aids
Your Testimony
Sets the Tone for the Trial
If you don’t care enough to prepare,
why should the judge / jury care
enough to convict?
When a Professional Witness
is Unprepared
It signals to the fact-finder
–Lack of professionalism
–That the case is not worthwhile
–That you don’t care about . . .
This type of victim
This type of crime
Your Credibility
Affects Every the Decisions
a Judge / Jury Make About the Case
If you made the right decisions in the case, why so
defensive?
What are you hiding?
Fighting with Defense
Counsel
Makes you look impulsive and irrational
– “So why should you believe this Deputy?”
Affects the attention that Judge / Jury can pay to
the facts of the case
– This is a specific distraction technique often
employed when the defense knows it is losing
You will not win . . .
– Unless you remain polite, calm, focused and
truthful
The Moment of Truth:
Testifying in Court
Testifying on Direct Examination
Testifying on Cross Examination
General Testifying Tips
Court Decorum i.e. dress the part
Direct Examination
Purpose:
– Designed to bring forward admissible evidence
that proves the state’s case
Questions
– Asked in a non-leading, open-ended manner
General format
– Introduction
– General investigation
Direct Examination Tips
Be prepared and able
to testify without
prompting
– Testimony needs to flow
smoothly, like a good
interview
Know the purpose of
your examination
– Entire case or limited facts?
Direct Examination Tips
Listen to the question asked
and only answer that question
Wait for prosecutor to ask
next question rather than
volunteering
Be able to answer questions
without repeating what a
witness, other than the
Defendant, told you
Hearsay objections make
evidence difficult to follow
Cross-Examination
–Types
–Concessions
–Impeachment
–Competency
AREAS OF ATTACK ON
CROSS
1.Expertise
2.Conclusion
3.Basis of conclusion
4.Source of facts
5.Age of information
6.Prejudices
DEFENSE GOALS FOR CROSS

Secure admissions.

Undermine prosecution expert’s opinion.

Create hostility to undermine credibility and
competency.

Introduce evidence which contradicts the
prosecutions’ theory of the case

Introduce a history of error in order to reduce the
weight and credibility and weight the jury gives to
their testimony
General Rule for Cross
Always tell the truth
Admit mistakes
Demeanor counts
Wait on objections
Cross-Examination Advice
Most questions on cross-examination can be
answered
Yes
No
I don’t know
I don’t remember
Listen to the question asked and only answer
that question
Cross-Examination
Advice
Remain calm
Rapid fire questions: breath before
answering
Look at Judge or Jury when answering
Remember that staying pleasant
means that you win
Be wary of the yes/no train
Cross-Examination
Advice
Be careful about characterizations
offered by defense
Just play it straight!
Treat the defense attorney with the
degree of respect that you should
give to the Judge/Jury/prosecutor
General Testifying
Tips
Speak slowly and clearly
– And avoid too much jargon
Objection!
– Stop answering & wait for ruling
Direct answers to Judge / Jury
– Why? They are the decision makers
Motion In Limine:
– Know what you can’t discuss
More helpful hints
Don’t guess
Don’t hedge
Be patient
Describe, don’t gesture
Do your part, not someone else’s
Know and be yourself
General Advice
Role of the Parties
– The defense attorney is not a friend to your case
– The defense attorney should be told about evidence
that is potentially exculpatory
– But the waiting room is not the place to express an
opinion about the case or its resolution
You are always selling your case
You are always representing your department
Being Ready to Testify
Research reflects
high profile cases
Research is given
great weight by
some courts
Ceci, Bruck,
London, Okla, et
al
Studies and Stuff
Sam Stone Study
Mousetrap Study
“I Hardly Cried When I Got My Shot”
Jack O’Mack Study
False Touches Study
Studies and Stuff
Research and the Real World
Average age of victims is 10 years old
Most interviews occur soon after disclosure
Interviewers use non-suggestive
techniques
Real World: Children interviewed after
they reveal abuse
Research World: Children interviewed
repeatedly after they deny an event
Being Ready to Testify
Get to Know your defense expert
and what they say
Get transcripts to see what they have
said in the past
Know what Defense attorney likes to
attack
BE AWARE OF YOUR BODY
LANGUAGE
DON’T BECOME A TARGET
BE ASSERTIVE
Above All Things,
Remember
You speak for
victims of crime
You are just here to
tell the truth!
The level of
concern and
amount of
preparation that you
devote to your
cases does affect
the outcome
Rob Giles
For When You Need Me
248-910-2084(cell)
703-519-1651(office)
rgiles@ndaa.org