Mark Pollitt Associate Professor Courtroom Testimony Mark Pollitt Associate Professor ©2005 Mark M. Pollitt

Two Kinds of Testimony Fact (or lay) Expert FRE Rule 701 FRE Rules 702/703/705 ©2005 Mark M. Pollitt

In either case… Be prepared! ©2005 Mark M. Pollitt

Know: What you are going to testify about? What level(s) of detail you might have to present? What physical evidence are you going to have to have admitted? How does this testimony fit into both parties case theory? ©2005 Mark M. Pollitt

Order of Testimony Direct Cross Examination Re-Direct Re-Cross Done by the party calling the witness Cross Examination Done by the opposing party Re-Direct Clarification by party calling Re-Cross Clarification by opposing party ©2005 Mark M. Pollitt

Direct Testimony Voire Dire In the case of expert testimony, Voire Dire is often conducted to ascertain the qualification to be an expert. Ask the attorney to ask you specific questions about your qualifications – not “tell us about yourself” A CV is normally presented as evidence of the expert’s qualifications. May be read into the record. Opposing party can cross examine the witness on voire dire. Judge makes a ruling on admission. ©2005 Mark M. Pollitt

Direct Testimony, cont. Lawyer questions witness. Physical evidence may be admitted through witness. Remember identification? Witness may be questioned about physical evidence admitted previously. Questions may be open-ended or closed. Witness must discuss with attorney, what approach will be used. Questions may not be leading for a direct examination. ©2005 Mark M. Pollitt

Direct Testimony, cont. Generally, testimony should follow the following format: Set up the situation Educate on the science Describe the examination conducted Describe the results State your opinions and the basis for them. ©2005 Mark M. Pollitt

Cross-Examination Done by opposing counsel May use yes/no and leading questions (isn’t it true that…) Generally seeks to do one of the following: Bring out favorable evidence Minimize the unfavorable evidence Impeach or reduce the credibility of the process or witness ©2005 Mark M. Pollitt

Caution!!! Open ended questions and silence are mine fields! When the question is asked, do NOT immediately answer it, rather: Make sure you understand the question Formulate your best answer Address the answer to the jury If opposing counsel can, they will try to make their testimony your testimony, don’t let them. ©2005 Mark M. Pollitt

Re-Direct & Re-Cross Generally may not elicit new testimony, but rather clarify previous testimony An exercise in “spin” Use to reinforce your testimony e.g.: “As I described before, …..” Judges have little patience for extended examinations. Lawyers are supposed to get it right the first time. ©2005 Mark M. Pollitt

Courtroom Mechanics You are on stage the minute you walk into the courthouse! People will judge your testimony, in part, by you, your dress and demeanor. Be professional at all times! ©2005 Mark M. Pollitt

All the world is a stage! ©2005 Mark M. Pollitt

Dress for Success Read the book by John Malloy Professional, conservative, be aware of jewelry, emblems, styles that the jury might react to. You will be “inspected” when you are on the stand. Avoid clothing that presents non-verbal communications challenges ©2005 Mark M. Pollitt

While Testifying Think before you speak Speak clearly and distinctly Slow down Always address the jury Make eye contact, look for understanding Keep an even pace in both testimonies Be direct, truthful and even in all responses – don’t appear partisan Clearly differentiate fact from opinion ©2005 Mark M. Pollitt

Prepared Exhibits For expert testimony it is often necessary to explain complex issues Prepare professional diagrams, pictures, etc. which will illustrate your explanation. Exhibits may be taken into the jury room to assist the jury. It should be an “indelible” image which makes the point clearly. Determine if the court has size restrictions ©2005 Mark M. Pollitt

Non-verbal Communication Non-verbals can ruin perfectly good testimony by sending conflicting messages or distracting attention from the testimony Be aware of nervous “ticks”, habits, posture, body positions, etc. Always show respect! ©2005 Mark M. Pollitt

When you are done.. Get up Leave professionally Get out! ©2005 Mark M. Pollitt

Questions? ©2005 Mark M. Pollitt