Toronto Criminal Trial Lawyer

Blog — The DOs and DON'Ts of testifying

Testifying should be simple. Too many get it wrong. Undoing a bad answer is like putting toothpaste back in the tube. Try as you might, it ain't happening. The key is understanding your role and surrendering to the process.

I impress upon my clients the holy trinity of testimony: (1) listen for the question, (2) answer the question, and (3) stop. Watch a few episodes of Judge Judy. Note how every bad witness violates one or more of these rules. As Judge Greene's ruling in D.R.'s case demonstrates, the manner in which you testify will be examined:

The accused testified in a forthright manner, and while his evidence differed on the key elements from the complainant, that does not mean that his evidence was not true or to be believed. And at a very minimum, I am left in a reasonable doubt by his evidence. He was forthright. He was honest. He was not touched in cross-examination. There is no basis on which to reject his evidence, and I am left in a reasonable doubt by his evidence and I therefore find him not guilty.

A trial is an organic process, not unlike a high-school play performed one time. You never know exactly how it (the evidence) is going to unfold, nor how the audience (the Judge) will react. Preparation helps, so embrace the holy trinity and follow my DOs and DON'Ts.

Craig Penney, Toronto Defence Lawyer
Certified Specialist (Criminal)

Testifying in Court? — Follow Craig Penney's DOs and DON'Ts:

1)  Dress neatly and conservatively — as at an interview. Don't underdress or overdress — as at a wedding.

2)  Sit up straight in the witness chair. Don't slouch or lean while testifying.

3)  Testify in a confident, straight forward manner. Don't look at me or the judge for help in answering a question.

4)  Speak frankly and openly, as you would to any friend or neighbour. Don't memorize what you are going to say.

5)  Speak loud enough so that you do not have to repeat yourself, and speak slow enough so that you are understood. Don't put your hand over your mouth, or have anything in your mouth such as gum or candy.

6)  Listen carefully to the question asked, answer the question, and stop — I call this the holy trinity of testimony. Don't answer a question not asked, or continue speaking after giving your answer.

7)  Ask that the question be repeated if you didn't hear it, or clarified if you didn't understand it. Don't provide an answer which might be misinterpreted.

8)  Take time to think about the question and the answer. Don't let the prosecutor speed you up.

9)  Respond directly to the questioned asked. Don't ask the judge or the lawyer if you have to answer.

10)  Answer "I don't know" or "I don't remember" if you don't know or can't remember. Don't guess at the answer, or provide an answer based on what someone else told you.

11)  If you gave a wrong answer, correct it as soon as you realize the error. Don't leave the witness stand without fixing it, and don't be reluctant to admit the mistake.

12)  Be polite to the lawyers and to the judge. Don't answer in a hostile or argumentative manner.

In closing, let me leave you with two thoughts. First, let Judge Moore's assessment of G.P. serve as a reminder that how you testify is just as important as what you say:

With respect to the testimony of Mr. G.P., I find that at a bare minimum it might reasonably be true on the issue of consent. And I might even go so far as to say that I believe him and accept his testimony as being truthful. He had a very good and detailed recollection of past events and the night in question. His testimony was consistent and he was not shaken in cross-examination. Explanations and opinions offered by him were logical and met the test of common sense. He was prepared to make admissions and concessions that could be harmful to his case. He was responsive to questions, not evasive or argumentative, and he very seldom responded with "I don't know" or "I don't recall."

Secondly, let Judge Wolski's assessment of the complainant's wife in A.M.'s Case serve as a caution not to enter the witness stand with presumption or hostility:

Dealing first with her evidence: her distaste for this process; her anger towards her husband; her distaste for everything about this process was palpable and she oozes all of that. I disregard her evidence in its entirety. If the defence were to fashion its evidence based solely on her word, I would disregard her as completely unreliable and uncredible.

... I specifically removed from consideration the evidence given by the wife, who I find to be a most unreliable and objectionable witness.