Confronting the Culture of the Courtroom: What to Do When It's Your
Turn to Testify
Clay Strange, Unit Director
Criminal Prosecution Division, American Prosecutors Research Institute, Alexandria, VA
AMERICAN PROSECUTORS RESEARCH INSTITUTE (APRI) DNA LEGAL ASSISTANCE UNIT
APRI's DNA LAU was established to continue the work of the FBI in assisting state and
local prosecutors in using forensic DNA analysis. The Unit began actual operation in March
of 1995. The project is funded jointly by the National Institute of Justice and the Bureau
of Justice Assistance, Office of Justice Programs, United States Department of Justice.
The Unit offers general and case specific technical and legal advice to prosecutors, DNA
laboratory personnel, and police/investigators. In conjunction with the National College
of District Attorneys, we will sponsor and conduct training for prosecutors, judges, DNA
laboratory personnel, and police/investigators, as well as produce materials which can be
used by other groups. The Unit publishes a quarterly newsletter, as-needed bulletins and
is at work on a trial advocacy manual. The newsletter, The Silent Witness, will
assist the Unit's efforts to be a clearinghouse of information about forensic DNA
analysis. Why should a DNA scientist care about any of this? Because we can help you get
the lawyer sponsoring and presenting your testimony sufficiently up to speed to make your
presentation a good one.
THE UNIT'S INVOLVEMENT WITH FORENSIC DNA EXAMINERS
The Unit provides technical and legal telephone assistance to answer questions about
discovery (i.e., how to respond, the extent to which the law has currently defined
its breadth, whether to allow defense experts in the lab). The Unit also assists with
preparation for training by the examiners of others in the field, providing case law on
other subjects which affect the labs, sharing training outlines and supplying visual aids.
However, despite the informational assistance we offer, the APRI cannot and will not
act as a legal advisor to the laboratory or the analyst. The prosecutor is the ultimate
judge of how his/her case should be handled. Our role is to supply information that may
not always be available to the prosecutor.
A pilot training program with and for analysts began in the Spring of 1996, to be
followed by regional training sessions later in the year. The Unit's Advisory Group,
comprised of seven prosecutors, four forensic DNA examiners, two forensic scientists in
other fields, and one appellate court justice, has developed a curriculum for training of
specific groups, including DNA analysts and examiners. The base outline will be expanded
and advice from analysts well-versed in criminal court testimony will be solicited. The
courses will most likely be two days in duration, providing ample time for actual,
"hands on" of training. Experienced prosecutors, defense attorneys and judges
will participate to give the participants the feel of a hotly contested forensic DNA case.
DNA EXAMINER TRAINING: WHAT TO DO WHEN IT'S YOUR TURN TO TESTIFY
[Note: The following suggestions are written by a prosecutor for a
audience of expert witnesses being prepared to testify for the government or the state.
Most are also applicable to the defense.]
Communication with prosecutors is the single most important aspect of preparing to
testify. Communicate with the prosecutor whether or not the prosecutor wants to
communicate with you. Insist on it. Explain to them, if necessary, that you do not want to
be embarrassed on the stand and that will certainly happen if the two of you are not
working in together.
In the very beginning of the case, plan to communicate with each other at each important
stage of the trial, including discovery responses, admissibility hearings, the trial
itself, and the preparation of the prosecutor's cross-examination of defense experts.
Establish a contact person in the prosecutor's office as well as the name and phone
number of a backup contact.
As soon as possible, ascertain the magnitude and type of case in question (i.e., whether
is will be a full-blown, knock-down fight with the death penalty at stake or a likely plea
on a sexual assault once the DNA results are made clear to the defendant).
Find out how DNA fits into the overall case, what other evidence will be and whether or
not the case is only circumstantial. (Many believe the expert comes across best knowing
only what he/she sees in the lab. We disagree.)
Determine if the prosecutor should tour your laboratory and where will you meet to
discuss the case.
Find out if the prosecutor has a set of predicate questions and share any that you might
have. Discuss the questions to be asked and those that should be avoided.
Avoid teaching the prosecutor about DNA typing until he/she has prepared on his/her own
with the materials we provide. This will reduce the level of frustration and be much more
informative for the prosecutor.
Find out early on if you will be required to help the prosecutor with the
cross-examination of the defense expert.
Enlist the aid of the prosecutor for your preparation for cross-examination by the
defense attorney. Find out about the defense attorney's style; is he/she well versed in
DNA? Does he/she have a science background? Is he/she contentious? Is he/she likely to try
to bait you?
Find out where you will do trial preparation-at the prosecutors office or at the
laboratory? Is it possible that a scheduled conference call will suffice? Such a call
should include, at some point, all the participants in the DNA portion of the trial.
Inform the prosecutor knows of any pitfalls (anomalies) in the forensic case. Lawyers
are trained to "cast the truth in the light most favorable" to their position,
but hate being surprised.
Dressing for the courtroom is more important than many think. Dress to convey your
recognition of the solemnity of the proceedings. This will vary from area to area and
region to region. Solicit the opinion of the prosecutor.
Dress with an attention to detail. If you look sloppy, it will be difficult to convince
the judge and jury that you are attentive to the smallest details in your laboratory.
Perfect world? Dress like you know what you are doing without dressing like a know it
all.
Your demeanor at the courthouse is also much more important than is generally thought.
The jury may be watching youat any time.Jurors often resent being
shuttled in and out of the courtroom and kept from hearing certain things they perceive
themselves as having a right to hear. To compensate they watch the participants for clues.
Always appear focused and serious, but not necessarily somber. Good defense lawyers will
try to make the trial less serious by cracking jokes and engaging in banter to show the
jury that the trial is not really all that big of a deal.
When communicating with the judge and jury, try to understand and be understood. Visual
aids are of great benefit, especially when explaining complex procedures.
Do not be pedantic. Assume the role of the kindly schoolteacher. Think "help,"
"assist" and "teach."
Never expect a non-specialist to know anything about your specialty.
Judges hate to admit to ignorance-treat them gently.
When addressing the jury, be like a shortstop-catch the question, get it in your glove,
turn and toss it to the jury. Answer directly to the defense attorney only for emphasis,
and then only rarely.
Pay careful attention to your body-language (i.e. crossed arms, etc).
Maintain high ground-show the jury you're comfortable with just telling the plain truth.
The "culture of the courtroom"is a real phenomenon. Our courts are
small worlds within themselves, with special rules, mores, and prohibitions that are not
always obvious nor logical.
Find out if there are any particularly odd rules at the courthouse your appearing in. (i.e.,
No newspapers or books in the courtroom.
Find out how and when to get to the courthouse-what day and what time, how long it will
take from your hotel or the airport, etc. to get to the courthouse.
Find out to whom you must report upon arrival, where to sit while waiting and whether
you will be under the Rule of Sequestration (the Rule, for short) If you are under the
Rule, you may not talk to other witnesses about their testimony or yours and must stay out
of the courtroom except when testifying.
Try to spend some time in the courtroom before you testify. Sit in the witness' chair if
possible. Move the microphone to where it will be when you take the stand. First
impressions mean a great deal with juries. If you look calm, confident, and comfortable
from the moment you sit down, you will make a much better impression.
Exhibit preparationshould not be left to chance. In admissibility hearings,
before the court or a jury, a detailed explanation of the DNA typing process will require
visual aids. Explain first with a flip chart, then explain everything again with graphics,
charts, and diagrams.
This paper can not deal exhaustively with how to handle cross-examination but here are
a few helpful hints.
Never lose your temper.
Provide only as much information as it necessary to answer the question. Never give a
long answer if a 'yes,' 'no,' 'I don't know' or 'I don't understand the question' will
suffice.
Take an occasional deep breath.
The prosecution, in a case involving DNA (usually a murder, capital murder or aggravated
sexual assault), usually has the moral high ground. Keep it. Try to remain above the fray.
Any good trial lawyer knows if he/she gets the witness angry, the battle is half won.
Convincing expert testimony revolves around the root word " interest."
You, as a witness, should be disinterested in the outcome in a financial sense (i.e.,
you are there to tell the truth, deliver the facts about your work). Testify for the
defense and the state from time to time. Set yourself apart from the "I'll say
anything for a buck" crowd.
You should be interestedin the case and in justice. Make that interest
easily seen. Care about the proceedings.
You must make your presentation interesting. Your text may be brilliant but if
the judge or jury is asleep (literally) or daydreaming it will be all for naught. Use
analogies, parallels examples that the jury/judge can relate to their own experiences.
Lastly, have the prosecutor call us for help. (703) 549-4253. Good luck!
