After the Webinar: Preparing Witnesses and Experts for Trial. Q&A with our Presenters

Webinar presenters Hilary Weinberg and Ed Paine answered a number of your questions after their presentation, Preparing Witnesses and Experts for Trial. Here are just a few of their responses.

Audience Question: I know that you want witnesses to be prepared, but even a witness who is knowledgeable can be nervous. Isn’t that nervousness authentic? Could it be seen as simply being honest?

Hilary Weinberg: Absolutely, and that happens occasionally. And it can happen with very experienced officers or people who normally testified. And sometimes I’ll ask them, “Are you nervous appearing here today?” “Yes. I know I’ve never done this before,” or “It always makes me a little upset when I have to testify.” I mean, it’s okay for the witness to say that they’re nervous because I will tell you there is a huge difference between being at the council table, or at the podium, and being on that witness. stand. I’ve actually had to testify a couple of times during the course of my career, and I get up a stand and I’m like, “Wow, that was nerve-wracking. That was crazy. It feels very different.” So just saying, “Yeah, I’m a little nervous today.” It’s okay. I think the jurors will understand that. So, if you want to throw a question out there and just say, “I understand you’re here testifying today are you nervous? Why are you nervous?” I think the jurors will appreciate and understand that. I don’t think their expectation might be the person on TV, but I think they get 2 or 3 people on the stand. They’re going to see that people are naturally nervous about testifying.

Audience Question: Do you prefer witnesses to face you as the prosecutor or to face the jury when they’re answering questions?

Hilary Weinberg: It’s about strategic planning. Now with COVID, we are kind of frozen to the podium. So, it seems a little, It’s a little strange. Normally, I try to place myself towards the end of the jury box. Which, especially for non-officer witnesses or people who aren’t trained, they will look generally in that direction, and remember to look towards the jury. I don’t mind the back and forth but what I’ll do is, a lot of my questions are, “Can you tell the jury what you saw when, blah, blah, blah.” And then, they’re like, “Oh, talk to the jury,” And then, kind of naturally turn towards the jury. So, there are a few little tricks and things you can do to make sure that your witness is talking to the jury. But you don’t want them staring down the jury either because that can be equally awkward. So, I don’t think it’s an issue if they look at you for some of the time, and some of the jury for some of the time. But if there’s something really important, I will start with, “Can you explain to the ladies and gentlemen of our jury what this is…” Or some kind of question just to kind of —– over there.

Audience Question: In a prior courtroom testimony training, they were told not to refer to the attorneys as sir or ma’am, suggesting that they should refer to the attorneys as counsel. Is that preferable, or what’s your experience, or is there a common understanding?

Hilary Weinberg: You know, I have never had that really come up.

Edward Paine: It seems to me that if you have them refer to you as counsel or something, that sounds a little stilted. And so, I don’t know that would necessarily go with that verbiage.

Hilary Weinberg: It doesn’t sound natural, it really doesn’t. You definitely want to have a rapport with your witness. I’ve had witnesses on the stand and say, “And then when I was coming over here, Hillary told me…”, they call me by my first name, I don’t care. I mean, they’re just giving their honest testimony. So, the sir/ma’am or counsel thing doesn’t really factor in a lot to what we do in training. I think that might be a, nitpicking and b, a little bit stilted and unnatural.

Audience Question: How do you protect your witness from being charged for omission? She went on to say that she saw a case for the witness, had gotten charged for omission because they got to use when the defense attorney asked questions. Meanwhile, the suspect was released. Any advice?

Hilary Weinberg: I don’t think we’re quite following, but what I would like to do is, if that person who asked the question can go ahead and e-mail us and get our contact info through you Chris. We’re more than happy to try to answer that question.

Audience Question: When somebody does use a word incorrectly, going back to that example, or maybe uses a word in an offhand way, that it’s just creating more confusion in the testimony. Is it okay to follow up with the speaker and ask if that’s what they meant? Or could they restate, or could they re-explain? How should we be handling situations like what you encountered with that witness?

Hilary Weinberg: I would definitely ask them, “So, what you’re saying is you don’t know anything about his gang background?” “Yes,” and then move on. I was sort of grateful that that was just a pretrial interview and not something on the stand.

Audience Question: Are there types when you’d rather have an officer not wear a uniform when they typically do?

Hilary Weinberg: Yes. The only times I’ve actually done this, I did some gang prosecution and so, I have a lot of undercover officers. And you’re going to, they’re going to show up and they’re going to be in, you know, T-shirts with visible tattoos and beards and just looking like a textbook motorcycle gang or something like that. I don’t want them really changing how they look if that’s how they work, and that’s how they look. And it also might give the jury sort of an idea, like when they, when they did the hand-to-hand sale with the defendant, this is what I looked like. So, they can understand why the defendant may have approached them, as opposed to, you know, they were standing there in a police uniform so that wouldn’t happen.

Edward Paine: I would you advise, maybe asking a witness when they come into court if it’s an undercover, and they’re wearing a t-shirt, ripped jeans, long hair, “Sir, why do you look like that?” Or ask them a question about why they’re dressed that particular way that might be an entree to explain, “I work undercover.”

Hilary Weinberg: Right. So, something like that would certainly help, that’s the kind of time when I don’t necessarily want an officer to show up in uniform or something that he would wear on the job. I think that’s, that’s definitely one of the examples.

Audience Question: You mentioned two acronyms, BFIT, and AFIT. Could you restate? We’re assuming FIT is forensic interview training. What does that B and A stand for in those acronyms?

Hilary Weinberg: Sure, sorry, if I went too fast through that. It’s basic forensic interview training and then advanced forensic interview training. We abbreviate them BFIT and AFIT, that’s my world, and I want to make sure other people know what that is.

Edward Paine: When I was preparing the slide show, I had to ask her what those acronyms stood for it because I’ve never done those types of cases.

Audience Question: Do you have any recommendations for books, journals, videos, or anything that you would recommend that we read or are able to go and learn more about preparing witnesses for trial?

Hilary Weinberg: I honestly don’t. Between Ed and I, we’ve got close to, you know, about 50 years of experience between the two of us, and it’s just a matter of having done a lot of trials. I would say, one of the best things that you can do, especially if you’re a newer prosecutor, is go watch more experienced prosecutors who are doing the types of cases that you do or want to do, and you’ll learn from them. You learn from watching them. I can name right now the attorney that I watch tried DUI cases when I was a brand-new attorney, and I learned from him how to do this. So, that’s where you pick up a lot of your experience. And then along the way, you’re going to pick up different types of witnesses and you have to do things differently. So, I, honestly, I don’t think I’ve had a book or manual, or journal, or anything that has said this is how you prep witnesses and prepare for trial. I mean, you go to a lot of different trainings throughout the course of your career. But I can’t point to one manual or one book that really sums up how I learned how to do the things that I do on a regular basis.

Host: Outstanding, Stephanie just texted a recommendation that she has, this book, Effective Expert Witnessing Practices for the 21st Centuries. I’ll take this book as well as the webinars that Hilary mentioned earlier about Recanting Witnesses. I’ll post those to the webinar recording page for today’s webinar.

Audience Question: Have you ever worked with an interpreter for your court cases and how have you included them in your preparations when prepping witnesses? Is there a need for an interpreter? How do you fold them into the process?

Hilary Weinberg: Well, there’s a lot of times, when we do work with the interpreter’s office. Typically, they want to have at least a brief conversation with the person needing the interpreter just to get a little bit of a sense of their dialect and how things are working.

I would say with interpreters, you just have to get all the patience that you have and double it, because things are going to take a very long time. You may have interpreters who can do simultaneous translating where it’s not going to slow things down that much. And there are going to be some especially for some of the more obscure, lesser-used languages, where they have to listen and then translate in their minds and then repeat for the witness and then get the witnesses to answer in that language and go through the process backward. So, they do take a long time. So, I will tell you, if you do have a witness who needs an interpreter, try to find out who the interpreter is going to be assigned to that trial if possible. That will help. And see if that interpreter is willing to join you for your witness prep situation so that you can get a sense of how they’re going to talk and how, how fast you can talk. Do you have to really slow down and stop for a while so they can catch up. Working with interpreters is definitely interesting. It’s incredibly fascinating. I’ve heard some languages that I’d never heard before. I had one last week on a plea that I covered from some Polynesian country and it was wow, it was amazing. So, just be prepared to take things slowly and do whatever the interpreter needs because it’s you really have to have a good record. Ensure that what was being translated was accurate, so you want to give them time to think it through and make sure they are accurately translating to the person you need to talk to.