10. Testifying in Court
Proper preparation by the caseworker, as discussed above, will make his/her job much easier when it is time to testify in court. However, good note taking and open communication with the agency attorney will not necessarily make a caseworker an effective witness. How well caseworkers communicate on the witness stand is as important as pretrial preparation.
Courtroom Dress and Demeanor
The impression given to the judge during testimony is crucial. The following checklist should help:
- The witness should dress professionally and conservatively. Usually, business suits or jackets and ties for men and dresses or skirts and blouses for women are appropriate.
- The witness should conduct him/herself in a businesslike and efficient manner (again, professionally). Before and after he/she testifies, he/she should not congregate with others or laugh, joke, or talk to show that he/she appreciates the importance of the court proceedings and takes them seriously. The witness should always be respectful in court.
- During his/her testimony, the witness should sit up straight, speak loudly and clearly, and look directly at the questioning attorney or the judge. He/she must remember that a message is conveyed by his/her nonverbal language (e.g., tone of voice, facial expression, hand gestures, body position, and eye contact). The witness should not slump or fidget.
- The witness should be sincere, objective, and dignified. He/she should not appear biased or defensive and should remember not to take cross-examination as a personal attack.77
Direct, Cross, and Rebuttal Examination
A witness may be questioned in several stages. First, on direct examination, the attorney who is using the witness as a part of his/her case will question that witness. This type of questioning is generally open-ended, allowing the witness to fully explain the answers, for the purpose of presenting the judge with evidence to support that party's position.
For most witnesses, testifying on direct examination is easier than on cross-examination. Preparation includes reviewing and organizing one's notes and meeting with the agency's attorney. Direct examination usually follows the following pattern:
- The witness's name will be called and he/she will approach the witness stand.
- He/she will take an oath, swearing to answer truthfully.
- The attorney who called the witness will probably ask:
- the witness's name, occupation, and place of employment;
- length of time he/she has worked at his/her current job, his/her job title, and the type of work he/she performs;
- the witness's job qualifications;
- how he/she knows the child and the respondent and for how long;
- what happened at specific time(s) and place(s); and
- any other pertinent questions.
While most direct examinations follow this type of pattern, caseworkers should not prepare a script or memorize their testimony. Spontaneous testimony is much more believable than "canned" testimony. In addition, witnesses are easily rattled or confused if the unexpected occurs (e.g., objections from opposing counsel, questions or interruptions by the judge). However, it may be helpful for prospective witnesses to practice some potentially difficult areas of their testimony with their attorney.
Once a witness has been questioned directly, he/she is subject to cross-examination by the opposing attorney. Cross-examination is designed to impeach the witness and expose any weaknesses in his/her testimony. It involves close-ended questions that generally require a yes or no answer; more complete, explanatory answers are usually not allowed. Leading questions (that suggest an answer by the very form in which they are asked) will be permitted on cross-examination. Being cross-examined will probably be the most difficult part for the witness. This does not mean, however, that witnesses should be overly anxious about cross-examination. Most attorneys will not continuously harass a witness until he/she breaks down and admits to biases and mistakes. Typically, the defense attorney tries, on cross-examination, to cast doubt upon the thoroughness of an investigation, the witness' interpretation of the facts, and perhaps whether the witness' judgment and actions were clouded by his/her feelings about the parents. If a caseworker has been careful and professional, he/she should be confident that the case has been handled properly.
It is important for witnesses not to take the cross-examination questions personally and to remember that the defense attorney is merely doing his/her job. He/she probably neither dislikes the witness nor thinks him/her incompetent. All lawyers must, regardless of their personal feelings, zealously represent their clients. Legal ethics require them to do everything in their power (within the limits of the law) to accomplish their clients' goals. If a witness views cross-examination as a personal attack, then he/she will seem defensive and unprofessional to the judge, an impression to be avoided at all costs.
Lawyers often use common techniques on cross-examination. An understanding of these tactics will make it easier for the witness to keep his/her poise when answering a question. These tactics involve both the form and the purpose of the question.
Cross-examination questions often take the following forms:
- Leading Question. A leading question suggests by its wording that the answer should be either yes or no. For example, in a neglect case where one of the allegations is that the baby was left home without adult supervision, the defense attorney might ask: "Isn't it true that the baby's 14-year-old sister was in the home whenever the mother went out?" Usually, a witness is allowed to explain an answer when only a yes or no would be misleading. If this is the case (as it would be in the example), professionals should begin their response by saying "that question requires an explanation," rather than answering "yes" and then trying to explain. If the defense attorney insists on a yes or no answer and interrupts the witness, he/she may turn to the judge and ask if he/she may continue. Judges vary in terms of how much explanation they will allow on cross-examination. Witnesses should not worry if they are not permitted to explain, or if, in the heat of the moment, they answer with an elaboration. The other attorney can still repair the damage on redirect examination, when a complete answer can be given. Interrupting a witness' answers is probably the defense attorney's favorite weapon, and he/she will rarely ask a question on cross-examination that does not lead the witness to answer with an abrupt yes or no.
- Rapid Fire Questions. The defense attorney may ask a string of leading questions in rapid succession, hoping to confuse or upset the witness. Since each question requires an answer, the witness has equal control over the pace. As with any question, pause to think about it before answering.
- Compound Question. A witness may be asked a question that contains multiple questions. For example, "You saw the father hit the child and the baby fell down the stairs, isn't that true?" This should prompt an objection by the other attorney. If he/she does not object, however, the witness should tell the defense attorney that he/she does not understand the question and that it requires a two-part answer. A witness does not have to answer any questions that are in compound form.
Some defense attorneys may use certain styles to throw witnesses off:
- Badgering. This is where the attorney stands close to the witness' face and shouts.
- Lulling the Witness. This is where the attorney gives the witness a false sense of security by being overly friendly and familiar.
- Staring at the Witness. After the witness has answered a question, some attorneys will pause and stare at him/her, as if expecting him/her to say more.
Witnesses should remain calm if the defense attorney uses any of these styles, and they should focus on their reason for being in court, which is to give testimony. There should be an objection if defense counsel's manner becomes too belligerent or disruptive.
The defense attorney's questions on cross-examination often have one of the following purposes:
- To show prejudice or bias. Defense counsel will try to discredit the witness' credibility by insinuating that the witness is biased or hostile toward his/her client. For example, he/she may suggest that because the parent was uncooperative or failed to show up for an appointment when promised, the caseworker is holding a grudge. The answer should simply meet such suggestions with the truth. Child protection caseworkers are used to dealing with uncooperative clients. If this is true for the witness, he/she should simply explain that his/her personal feelings about the parent did not influence his/her decisions.
Case dictation/narrative/progress notes may also be used by defense counsel to show bias. The caseworker may be asked to read his/her dictation aloud in court. It will seem more objective (less biased) if the practice is followed, as discussed in the chapter on "Pretrial Caseworker Preparation," of entering observable facts, rather than recording generalizations, conclusions, and judgments. For example, a notation that "the parent is uncooperative and rude whenever I visit the house" will convey more bias in court than if the caseworker had listed the specific uncooperative or rude behavior. The following notation would enhance one's credibility as an impartial witness: "On June 2, 5, and 8 at 1:00 p.m., I went to the parent's home, knocked on the door, and identified myself and the purpose of my visit. Each time, the parent slammed the door in my face and shouted `I don't need any social worker to tell me how to raise my children!'"
- To show inexperience. The defense attorney may try to impeach witnesses by challenging their ability to perform their jobs. If the witness is a new caseworker, defense counsel might draw attention to the witness' lack of experience. He/she also might highlight the fact that the caseworker does not have an advanced degree in social work. The witness should be honest and not exaggerate his/her experience or fabricate degrees. However, the witness should not minimize his/her experience or other qualifications either. A caseworker may have only been on the job for 6 months, but may have handled an impressive number of cases. Also caseworkers are in court to testify the facts: what they did, saw, and heard. If they avoid offering opinions and judgments (which might require a certain degree of experience to be meaningful), their lack of experience should not weaken the case.
- To show inconsistency. Another tactic to discredit witnesses is to find previous statements they made that are inconsistent with their testimony (e.g., from notes or from a deposition). The child welfare agency's own attorney can always rehabilitate the witness' testimony on redirect examination by showing that the earlier statements were taken out of context or based upon less information than the witness' current testimony. The defense attorney may also try to show that the witness is inconsistent by repeatedly asking him/her the same question, rephrasing it each time, in hopes that he/she will contradict him/herself. The agency attorney may object to these questions as having been asked and answered.
- To show poor judgment or practice. Witnesses should recognize that there may be honest differences of opinion, based upon the same facts. The defense attorney may try to get them to admit that the parent's view has some merit, or that they overlooked some important facts in their investigation. Witnesses should try to avoid conceding a point (e.g., saying "that's possible"). Instead, they should stick to the facts and let the judge decide whose position is correct.78
If the attorney who presented the witness feels that rebuttal is necessary, redirect examination may be conducted but will be limited to those issues raised on cross-examination. Any issue the witness did not get a chance to explain on cross-examination can be cleared up or answered more fully on redirect. Finally, any issues raised on redirect may be addressed by recross-examination of the witness.
Guidelines for Testifying in Court
The following general guidelines apply to all stages of questioning (direct, cross-, redirect, and recross-examination), and will improve the overall quality of a witness' testimony:
- The witness should be prepared. He/she should have a thorough knowledge of the case record. This will make him/her more confident and more helpful to the judge, and his/her level of persuasiveness will also be increased.
- The witness should listen carefully to each question and pause to think before he/she answers. He/she should not let the questioning attorney rush him/her.
- If the witness does not understand a question, he/she should ask the attorney to repeat it, clarify it, or rephrase it.
- The witness should answer only the question he/she was asked and should not volunteer additional information or discuss tangential subjects.
- If the witness does not know the answer to a question, he/she should not be afraid to answer "I don't know." Admitting that he/she does not know something will often enhance his/her credibility. Guessing at an answer or qualifying it with an "I think so" may leave the witness open for impeachment later.
- The witness should not give an opinion unless it is requested. He/she should testify to the facts within his/her own personal knowledge and experience. He/she should be specific; if possible, giving exact times, dates, and numbers. Events should be described step-by-step, rather than through narrating long stories.
- The witness should avoid taking sides. His/her job is to present evidence as truthfully and accurately as possible; it is the attorneys who must advocate for one side or the other.
- The witness should maintain proper courtroom decorum (as discussed in "Courtroom Dress and Demeanor"). He/she should dress appropriately and show respect for the judge.
- The witness should speak a little louder, slower, and more distinctly than he/she usually speaks. The answer must be verbal; he/she should not shrug his/her shoulders or nod his/her head (all answers need to be heard and recorded by the court reporter).
- The witness should use appropriate language, not slang or professional jargon.
- The witness should always tell the truth.79
Professionals as Witnesses in Sexual Abuse Cases
Few professionals who work with sexual abuse cases enjoy testifying in court. The key to quality testimony and emotional survival in court is thorough preparation. The professional should know the facts of the case, his/her opinion about the facts and the case, the essential points that should be communicated in the testimony, the weaknesses of his/her presentation, and the questions he/she may be asked on cross-examination. The professional can expect to spend 2 to 3 hours of preparation for every 1 hour on the stand.
Know the Facts of the Case
Most sexual abuse cases have a history. Professionals should memorize the names, ages, and grades of the children; when adults met, were married, and divorced; what the specific sexual abuse allegations are and the context of their occurrence; and the particulars of other important events in the case. He/she should be aware of gaps in his/her knowledge about the case.
This kind of preparation will help the professional provide testimony that appears to be informed and precise. It will protect him/her from leafing through the case record looking for information, which may make him/her look as if he/she does not have a full command of the case. It will help the professional avoid being tripped by the opposing side by unanticipated questions that call upon factual knowledge. It may even afford the professional the opportunity to correct the opposing attorney when he/she is incorrect or imprecise in his/her presentation of the facts.
Have an Opinion
There is one major difference between a material witness and an expert witness: the expert may give opinion testimony in a substantive area (e.g., sexual abuse). A person becomes an expert by virtue of her/his education or experience; however, it is much easier to be qualified as an expert if he/she possesses a doctorate. It is the judge who decides whether the witness qualifies as an expert.
A professional who is testifying as an expert witness in a situation of possible sexual abuse should have formed an opinion about the case. The opinion may relate to a number of issues; appropriate issues will depend upon his/her profession. The most common issue for sexual abuse cases is whether the child has been sexually abused. However, in most instances, the professional will not be allowed to testify to that directly, but will instead testify about whether the child's behavior fits the sexually abused child disorder (presents a symptom picture consistent with having been sexually abused)80 or the child sexual abuse accommodation syndrome (has responded to the experience of sexual abuse by accommodation, denial of the abuse, delay in reporting, and recantation after disclosure).81 (See the section on opinion evidence in a previous chapter in this manual entitled "Proving Child Maltreatment in Court.") Other issues to have an opinion on are where the child should be placed, what sort of treatment is needed, whether the abusing parent should be incarcerated, or what kind of visits are indicated.
The issue of partisanship can be a very troubling one for witnesses, especially because the courtroom is so adversarial. It is important to appreciate that the entirety of the opinions usually will not completely support the positions of any of the attorneys involved. For example, in a divorce case each of the opposing attorneys will want the professional to highlight the positive attributes of his/her client and the negative attributes of the parent on the other side. The professional will probably see positives and negatives in both parents, even if he/she has decided that one has been sexually abusive. A useful position is to recognize that the professional is partisan to his/her opinion about the case, not toward one side or the other.
Moreover, because the professional's opinion will be considered, for example, about positive and negative aspects of both parents, there is no reason not to share these despite the objection of one or the other attorney. Presenting a balanced picture of family members will enhance the professional's credibility as an unbiased expert.
The professional must not only be prepared to give his/her opinion, but also be able to explain the basis for the opinion. Generally, the basis of an opinion includes factual material about the case and a methodology for analyzing the material.
Consider the following example: A mental health professional's opinion that the child exhibits symptoms consistent with having been sexually abused (or has been sexually abused) is based upon the fact that the child has reported repeatedly that his "uncle tried to suck pee out of my wiener," that the boy indicated that he would be poisoned if he told, and the fact that he was found initiating a 3-year-old to penis sucking. The methodology described to the court could be an evaluation of whether any indicators of sexual abuse were present and an inquiry based on the criteria for determining the veracity of an allegation. The facts of the case and the methodology for interpreting them would be presented to the court.
The Essential Points of the Testimony
People's lives and behavior are very complex. The courtroom is poorly suited for communicating these complexities. The professional's discipline and its subtleties may be quite foreign to the fact-finder, whether it be a judge or a jury. Futhermore, the attention span of the fact-finder may be limited.
Therefore, it is best to decide in advance the essential points that the professional would like to communicate to the court. Sometimes a written list is useful. Usually there will be one attorney who is more sympathetic or who has called the professional to testify. The professional can let the attorney know what questions he/she should be asked to communicate these essential points. It is also a good strategy to look for opportunities while testifying to emphasize these points during both direct examination and cross-examination.
The Weaknesses of the Position and Cross-examination
In most cases, the goal of cross-examination is to try to elicit material supportive of the attorney's client. Any elucidation of the true facts of the case that occurs during this process is secondary. If the professional's opinion reflects poorly upon the attorney's client, the attorney will use cross-examination to try to discredit the professional and his/her testimony.
The professional may not be able to anticipate all of the questions of cross-examination, but the more that are anticipated, the better the testimony. For these questions, the professional should decide ahead of time what the best response will be and should prepare to give it.
There are two types of challenges experienced during cross-examination, those that attack the professional and those that attack the professional's testimony. Within these two categories are subcategories. Attacks aimed at the professional as an individual will relate to his/her credentials, possible personal biases, and his/her personal life. For example, common queries made of child advocates are: how many cases did the professional confirm and disconfirm sexual abuse or how many times has he/she testified on behalf of the accused.
Challenges to the professional's testimony may include the following: inadequacies in his/her act-finding, facts he/she did not know, facts he/she did not consider in forming his/her opinion, and misinterpretation of the data.
Before going to court, the professional should think through the case carefully and consider possible challenges and responses. In addition, he/she should talk with the attorney for help in identifying possible weaknesses in the testimony. The professional should remember that it is not the attorney whom the professional should persuade'it is the judge or jury.
Objections by Attorneys and the Judge's Response
During the adjudicatory phase of a case, the attorneys for the parties involved may object to the admission of certain evidence. An objection occurs when the attorney formally asserts to the court his/her legal opinion that a piece of evidence is not proper for the judge or jury's consideration. The judge may decide to sustain or overrule an objection immediately or the attorneys may be asked to defend their respective positions on the admissibility of that evidence before the judge rules. When an objection is overruled, the witness must answer the question originally asked. A sustained objection prevents the witness from responding to that question.
This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.