HOW TO GIVE EVIDENCE IN COURT July 2005 Use this Logo when this line of text is OVER 36 mm The DTI drives our ambition of ‘prosperity for all’ by working to create the best environment for business success in the UK. We help people and companies become more productive by promoting enterprise, innovation and creativity. We champion UK business at home and abroad. We invest heavily in world-class science and technology. We protect the rights of working people and consumers. And we stand up for fair and open markets in the UK, Europe and the world. HOW TO GIVE EVIDENCE IN COURT Preparation It doesn’t matter whether you have a lot of experience or a little – you may find that the witness box is a lonely place if you are not prepared for it. If you get it wrong it is no good berating the prosecutor, the defence lawyer or even the other witnesses. They may have made some mistakes but you are responsible for the way you give your evidence and so much depends on you. The courts will have expectations of you as a witness and these expectations will rise if you are a professional witness, i.e. appearing in court on behalf of your profession. Unfortunately however, professional witnesses are very often simply unprepared for the court experience. Have you prepared for the experience of appearing in court? Are you going to present yourself as well as possible and give the right impression? Will you appear to be the professional witness that everyone expects or will your nerves take over and affect your credibility? A survey of juries who listened to professional witnesses giving evidence showed that many were not as professional as they should be. The majority appeared quite well organised and well prepared but over half of the jury members reported that a better impression could have been made. In one Crown Court four out of ten of this type of witness were considered ill prepared and poorly organised. So read on for some hints and tips on how to look good, sound good and hopefully feel good after the experience of going to court. 1 Recording of Documents The way that you prepare for court begins with the way you provided your evidence to the investigating officer and how you recorded the evidence that should prove or disprove the offence. When you record your evidence, you should be able to prove that the notes you made were made at the time of the event or shortly afterwards. If you can’t prove that, the magistrates or presiding judge may not allow you to refer to your notes, so make sure your notes are timed and dated. The best place to record your notes is in your daily work records. This is the place to record hearsay evidence (what other people, not the suspect, have said to you). Write down everything that is relevant. When you subsequently make your statement the investigating officer will guide you through what is admissible to the court (as you will not be allowed to refer in court to some hearsay evidence). A representative of the Official Receiver’s Office said: “As it is often two to three years before a trial takes place, from the point of view of my examiners I always advise them they should re-read their reports as background before giving evidence. I emphasise to them that they are not an “expert witness” and therefore should be careful of expressing their opinions, either in a statement or in court.” To prevent abuse of process arguments it is very important that books, records and their subsequent listings are recorded accurately, with a clear audit trail. 2 Keeping Records You must retain any documents that are relevant to the investigation and reveal them to the investigating officer, who in turn will tell the prosecution and defence of their existence. You then need to keep them for the defence to examine if they wish, and be prepared to produce them in any subsequent court hearing. It is vital that any documents relevant to the investigation are not altered or destroyed. If you allow this to happen you may have to explain personally to a judge. Expect your notes to be challenged by the defence. Be wary of relying on other people’s notes as opposed to official records – you are relying on how someone else has interpreted the incident, rarely the same thing. Don’t make the mistake of discussing your evidence with other witnesses, either before or after the court proceedings. The defendant could appeal against the verdict or the sentence and you may compromise your integrity as a witness. Never, ever, contact the defence, you must go through the investigating officer and prosecutor every time. A good witness will be fully prepared before the day of court. 3 Your Appearance Technically your appearance is irrelevant and the court should rely on the credibility of your evidence as opposed to how you are dressed. However, experience shows that there is no way you will retain your credibility if you do not present yourself well and create the right impression. So much depends on how you appear to the magistrates or to a jury, particularly if you are appearing as a professional witness. Looking at an extreme example, if you are appearing in court on behalf of the Official Receiver and turn up dressed in jeans and a tee shirt, expect the jury to make some assumptions about your credibility! Ask yourself this. If appearances don’t matter then why are all officials of the court, ranging from lawyers, clerks and ushers through to those sitting on the bench, dressed for the part? Think about the sort of messages you are giving others by your appearance. If you can’t make the effort then you aren't just letting yourself down but also the other witnesses, including the victim. Chris Duggan is the Chief Investigation Officer and Head of Profession for Criminal Investigators for the DTI. He said: “Even if you don’t intend to refer to your official notes in court, but have told the investigating officer of their existence, you must have them with you in court. My advice to those attending court is to know your evidence thoroughly. The more you can give your evidence from memory, the more weight that carries.” 4 You may be met at the court by Witness Service volunteers or by a representative of the prosecutor but they will not be with you throughout the day. If the prosecution is on behalf of the DTI the law clerk allocated to your case will introduce themselves to you as soon as possible, explain the court procedures and give you a guide of the court itself. At the earliest opportunity identify yourself to the investigating officer and to the prosecutor. You will be given the opportunity to read the witness statement you made during the course of the investigation. Other witnesses appearing in the case will also be allowed to individually read their statements. It is a great temptation to discuss the case with these other people but you must not do this. People who have seen the same incident, heard the same conversation or have been involved in the enquiry will remember it differently and you may become confused if you discuss it with them. In any case, if it becomes apparent to the court that you have compared your statements or discussed evidence with each other, then you will be discredited. The Oath Decide whether you take the oath or affirmation, before you enter the witness box. No matter how well you believe you know it, always read from the card given to you. That way, you will not fall into the trap of adding “so help me God” on the end of your oath (this is American and you will only be asked to repeat the oath properly). When you are sworn in, don’t rush it, or you may sound insincere. If swearing the oath, hold the bible (the New Testament) in your right hand, at shoulder height and begin impressing the magistrates or jury with your honesty and integrity. If you are affirming do not raise your right hand. The oath is “I swear by almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.” People of different faiths will take the oath in a way appropriate to their belief, e.g. a Jew will use the Old Testament and a Muslim, the Koran. The affirmation is “I do solemnly, sincerely and truly declare and affirm that I shall tell the truth”. Christians may also choose to affirm – it is just as credible as taking the oath. 5 Giving Evidence If it is the first time you have given evidence, let the prosecutor know. The prosecutor will tell you whether you will be expected to give your evidence in full, or whether they can take you through it with a series of questions. You will also be advised on which parts of your evidence are not required to be heard 6 in court. For example, during bankruptcy proceedings when a person is compelled to give an explanation to an Official Receiver about where their assets are, very often that evidence is not admissible in subsequent criminal proceedings. Arriving in Court This can be a stressful time, particularly if you are going to a court you don’t know. The Witness Service volunteers offer an opportunity to look around the courtroom before the day of the trial and familiarise anyone with the proceedings. Make sure you get to the courtroom in good time (with any documents or exhibits you are expected to bring) and at least thirty minutes before the case is listed to begin. Find out which courtroom your case will be heard in via either the list normally displayed in the court foyer or by asking a court usher. At many courts there is now a desk to which you should report. They will check you in and be able to tell you which court you are in. Then find your case clerk, investigating officer or prosecutor who is handling your case. All criminal courts are now served by the volunteers of the Witness Service who are also available to help you. Familiarising yourself with the courtroom and finding out where you will stand to give your evidence will help overcome any nerves you may have. If you haven’t done so already introduce yourself to the prosecuting lawyer or caseworker who is supervising your case. You will be found somewhere comfortable to sit and kept up to date with the progress of the case. Refresh your memory properly by carefully reading your statement and the notes that you made at the time Making early contact with the prosecutor will ensure you are involved in any decision making about your case. You will not be allowed in the court before you give your evidence unless you have permission of the court. Robin Nelson has worked as a prosecuting and advisory lawyer for 18 years. He said: “There are some witnesses who are excellent at giving evidence but others, I am afraid, who quite clearly let themselves and their colleagues down. Witnesses should properly refresh their memories prior to going into the witness box so that they are confident and convincing” 7 DTI Cases The treatment the witness receives will depend on whether the case is in-house or an Agent’s case. In the majority of cases prosecuted by the DTI, witnesses are not required to attend court and give evidence. The offender will either plead guilty or the evidence of the witness will be read out in court. In any event, a law clerk employed by DTI Legal Services will contact witnesses for their court availability. Following this the same law clerk will inform the witness when and where to attend court and keep them informed of the progress of the case, particularly if there are any delays. Pat Ogan, Chief law clerk, said: “It falls to the law clerk to put the minds of witnesses at ease and make their appearance at court as painless and pleasant as possible. He or she will deal with any problems concerning the practicalities of getting to court and the costs of doing so. We recognise that some witnesses can feel intimidated at the thought of giving evidence and we will explain the procedures involved to do everything possible to put your mind at ease. If you have any concerns at all please contact the law clerk handling your case.” If you are not in court when the case is finalised you will be sent a letter with the outcome and any sentence imposed. 8 Giving Your Evidence Speak Slowly A number of people will be writing down what you say, so wait for the judge or magistrates to stop writing before you go on. It is off-putting for someone to stop you while you are in full flow but no one has ever been criticised for giving his or her evidence too slowly! Look at the person asking you questions but then, in a Magistrates’ Court, address your replies to the magistrates. Maintain Eye Contact In a Crown Court address your replies to the jury, even if asked a direct question from the judge. Initially, you may find this difficult, as you are being asked questions from the prosecution and defence but then replying to others. However, this is the correct thing to do and in doing so the defence will not find it so easy to intimidate you, juries in particular will be very impressed if you can keep eye contact with them. Remember that the magistrates or the jury, even the judge, may not be familiar with the jargon you use in the workplace. Don’t use abbreviations unless their use is obvious. You may appear pompous and you will be stopped as you give your evidence in order to explain what you mean. When responding to magistrates, you may call them “Sir” or “Ma’am.” It is rather oldfashioned to refer to them as “Your Worships.” Magistrates are not usually legally qualified and take legal advice from the Magistrates Clerk (who sits in front of them). A Stipendiary Magistrate is a barrister or solicitor who sits alone in court and is now known as a District Judge. They should be addressed as “Sir” or “Ma’am.” In the Crown Court, circuit judges and recorders are referred to as “Your Honour”. High Court judges are referred to as “My Lord/Lady”. If in doubt ask one of the court officials before you give your evidence. Using Notes You may only refer to your original notes if you ask the permission of the court first. The prosecutor will invariably ask you; "When did you make the notes?" You must be able to persuade the court that you made the notes at the time of the event or as soon as possible afterwards. Try to remember the important parts of your evidence without reading it and only refresh your memory with the notes you made. This is where your preparation will help you. If you know your evidence inside out you will come across as a more credible witness. 9 Cross-Examination It is the duty of the prosecution to present the evidence fairly and impartially. It is the duty of the defence lawyer to test the accuracy and truth of that evidence and advance their client’s case to the best of their ability. If the case for the defence depends on discrediting you or your evidence then be prepared for that. Don’t get upset, or pretend to get upset when it is inferred that you are mistaken or even that you are lying. Your duty and professional responsibility is to give the court all the evidence available and to do that objectively and independently. Don’t set out to "get a result" and don’t assume an offender is guilty before he is proved innocent! Don’t argue with the defence and don’t try to give clever answers. You should anticipate that any lawyer representing the defence in court is an experienced professional who is well versed in cross-examining witnesses. The defence 10 may have a hopeless case which relies on them discrediting prosecution witnesses. Unfortunately in this situation their questioning will be based on experience which shows that some people rise to the bait easily, become aggressive and angry and appear unreasonable. Likewise, be prepared for the defence being inept. You may be asked multiple questions – in which case you should take them one at a time and try and make it clear to the court what is happening. Be professional, always be polite and don’t take cross-examination personally. In a survey of witnesses nearly a quarter said that they felt uncomfortable when cross-examined. This may be explained by the same survey showing that only 40% of them had prepared for giving their evidence. Useful Tips You may find the defence tries to make you give a "Yes" or "No" answer, perhaps to make you commit to an answer which is misleading. If you are being pressured to give a black or white answer when a more detailed explanation is required, don’t hesitate to turn to the bench. Respectfully suggest that to give such an answer would "mislead the court." This gives the judge or magistrates the opportunity to intervene and often you will be allowed to give your full explanation. In the same way, if your answer begins, "Yes, but it was obvious that…" and the defence cuts you off after the "Yes", ask the court if you will be allowed to answer the last question properly. Don’t stick to closed replies such as "Yes", "No" or "I don’t know" if it is obvious that a further response is needed by the court – you will just appear unhelpful and defensive. When under pressure don’t embellish your answers, particularly if you don’t have details in your notes or cannot remember. You will only fall into the traps set by the defence. Don’t be too eager to please and start every answer with "I believe". All that will happen is that one of the lawyers, if not the judge, will challenge you with "Did you witness that or not?" Gripping the witness box Make sure you are standing comfortably, at ease, with your hands behind your back or loosely held in front of you. It is a mistake to grip the sides of the witness box – it is too easy to see your knuckles go white as you grip it. You may need to take heavy files or records into the witness box with you. Don’t make the mistake of balancing them on the side of the witness box – if they fall off you will never regain your composure! Likewise, unless you want to risk the wrath of the judge, don’t rest your file on his or her bench without asking his or her permission. If you don’t understand a question or forget what was asked halfway through your answer, say so and ask for it to be repeated. If you are convinced that what you are saying is the truth then don’t back down, no matter what the defence say. On the other hand, acknowledge that everyone sometimes makes a mistake and don’t dig a hole for yourself that you can’t get out of. Remember that you are not the one on trial. 11 Following Your Evidence Once you have given your evidence to the prosecutor, been cross-examined by the defence, re-examined by the prosecutor and it has been established that the magistrates or judge have no further questions, you will be thanked and asked to sit at the back of the court. However, you may be required to be called back into the box to be re-examined his/her witnesses give evidence which conflicts with yours. If you wish, the prosecutor will ask for you to be released from court so that you can return to work. If you prefer you can sit at the back of the court and watch how the case progresses. You might not like what you hear but be professional. Don’t sit there shaking your head when the defendant or Expect the defendant to give conflicting evidence – otherwise they would be pleading guilty! Make sure that you stand if you are able, when magistrates or a judge enters a court. Everyone else will and you will look discourteous if you do not. Intimidation On rare occasions the accused will attempt to make contact with a witness, either in person or through a third person. This is serious because it is a criminal offence to intimidate (frighten) a witness or anyone helping the investigating officer during an investigation. If you are harassed or threatened in any way before, during or after a trial, you must report it. Get in contact with the investigating officer immediately or tell the prosecutor at court. If 12 either is unavailable, tell a court usher. If you are worried about meeting the defendant, other witnesses, their friends or relatives or anyone else involved in the hearing or trial, then please share this with someone. You can speak to the Witness Service at court, the DTI investigator or the police at any time. There should be a separate room made available where you can wait before and during the hearing. Special Measures for the Vulnerable Special measures can be made available for either a vulnerable or intimidated witness. A vulnerable witness is one where the court believes extra help is needed because the witness has limited understanding, or a physical disability or physical disorder, or suffers from a mental illness. Intimidated witnesses are those who are likely to suffer because they are afraid or distressed at giving evidence. The special measures mean that: • the witness box is screened so that the witness and defendant can’t see each other; • the witness sits in a room away from the court and gives evidence via a live TV link; • the public gallery is cleared except for one member of the Press; • the defence questions the witness before the trial. A recording of this, in response to the Prosecutors evidence-in-chief, is then played to the court. IF YOU HAVE ANY CONCERNS PLEASE TALK TO SOMEONE ABOUT IT. Please read this document in conjunction with the DTI booklet “Witness in Court” Comments? If you have any comments, feedback or suggestions on how we can improve this publication, please contact, Glenn Wicks, Nottingham Legal D (IOS) on 01159 507013 or E-Mail [email protected] 13 Printed in the UK on recycled paper with a minimum HMSO score of 85. First published February 2005. Department of Trade and Industry. www.dti.gov.uk/ © Crown Copyright. DTI/Pub 7907/2k/07/05/NP. URN 05/1233