Testifying in Virginia criminal court requires thorough and intelligent preparation

Testifying for the criminal defense is no merely simple exercise of engaging in questions and answers, which I know as a Virginia criminal lawyer. This is the second of a two-part article. The first part is here.

Virginia criminal lawyer on questions to expect when testifying

The criminal defense lawyer cannot anticipate every single question that might be asked of a testifying defense witness by either side. The questions asked by the criminal lawyer depend on the developments at trial and the crystallization of trial approach and strategy in the lawyer’s mind as proceedings progress. The criminal lawyer can try to anticipate some of the questions to come from the prosecutor, but cannot anticipate them all. Moreover, if the defense witness says something on the witness stand that the criminal lawyer could not have anticipated, that will invite a new line of cross examination.

Virginia criminal defense attorney on the persuasiveness of answering questions without fighting the question nor questioner

A testifying criminal defense witness (and any witness) will be more believable if s/he simply answers the question and only the question. The witness should not start answering before the question is asked, because one cannot honor his or her oath to tell the truth without knowing the question being asked.

My testifying witness should not make efforts to help the defense by adding more information than the question seeks. My witness should understand that I will follow up with further re-direct questions to clarify any points and to reduce any damage to the defense from prosecutorial cross examination, to the extent I see fit.

Virginia criminal attorney on the importance of the witness not taking a lawyer role

My testifying witness should have faith in me to object when it seems best to do so to help the defendant, and to not object when it seems more dangerous than not to object. The witness must answer each question — unless the trial judge sustains a particular objection or otherwise directs the witness not to answer — unless the witness decides during mid-testimony to assert his or her Fifth Amendment right to remain silent.

My testifying witness should not look to me from the witness stand for help from me, other than to ask me any clarifying questions while I am questioning the witness. The witness must not use any non-verbal language, unless asked for that by the examining lawyer.

Fairfax criminal defense attorney on simply telling the facts as they are

The testifying witness should not analyze the direction the examining lawyer is taking, and should simply answer the question. The witness should not engage in gestalt/filling in the blanks of information. For instance, while I might assume that because I see someone’s palm, that five fingers are attached, I have no reason to know whether one of those fingers got lost in an accident somewhere along the line if I have never seen five fingers. Therefore, I as a witness should not say that someone had five fingers on his right hand if I have never seen all those fingers.

During direct and cross examination, the opposing lawyer may enter an objection. Once the testifying witness hears the word “object” or “objection”, the witness must stop answering. The judge will either say “overruled”, which means the witness should answer the question, or will say “sustained”, which means the witness must not answer the question, and must wait for the next question.

After I finish asking my testifying witness questions, the prosecutor will ask cross examination questions, which is governed by Va. S. Ct. Rule 2:611. My witness should not let his or her guard down with the prosecutor, no matter how nice or not the prosecutor asks. The prosecutor should be answered politely, no matter how nasty or aggressive the prosecutor asks.

The trial judge is permitted to interject questions of testifying witnesses. The witness should also be polite in responding to the judge.

This is the second part of a two-part article. The first part is here. 

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against prosecutions for felony, misdemeanor, DWI, and drug charges. Jon Katz is available to discuss your case with you, through a confidential consultation scheduled through his staff at 703-383-1100.