Tips For Testifying In Court

Testifying is providing spoken evidence to the court. It can be stressful for anybody, just remember that as a social worker, you should not offer legal advice to a client because this is not your area of expertise. Offering legal advice your client could breach the National Association of Social Workers (NASW) core value of competence. Overall, you are there to offer support to your clients.

#1: Refresh Your Memory: Review your notes & plan ahead for testifying. It’s part of your job to provide the court with documentation. Court officials may provide you with documents while you’re on the stand, but don’t expect them to. Bring your own case documents just to be safe. Highlight meaningful dates, events & times in the documents before hand, so that they’re easy to find. Never feel like you can’t review your notes before answering a question, just ask for “a moment to review the facts to be sure”. Remember, it’s always better to check then to be wrong!

Don’t agree with estimates or conclusions made by the questioning attorneys, unless you also made that same estimate or conclusion on your own. Checking your notes will help you avoid agreeing with suggestions made by attorneys. Remember, any notes you as a worker bring in can be seized as evidence by the judge. It’s best to only bring with you documents that have already been submitted to the court. Always analyze the potential consequences for you & your client if your document were to be seized for evidence. 

#2: Speak in Your Own Words: Don’t try to memorize what you’re going to say beforehand. It might make your testimony sound too scripted & unconvincing. Remember to be yourself when you’re testifying, & prior to trial, go over in your head what you will/might be questioned about so that you have a sense of preparedness.

#3: Appearance is Important: A neat appearance & proper dress is important when testifying in court. To casual or too dressy/flashy of an appearance will distract the jury during the brief time you’re on the stand. This may cause them not to pay attention to your testimony.

#4: Speak Clearly: Present your testimony clearly, slowly & loudly enough for even the furthest juror to easily hear & understand. Avoid distracting mannerisms, such as chewing gum while testifying. Other examples of distracting mannerisms might be playing with your hair or picking at your nails. Although you’re responding to a lawyer’s questions, remember that the questions are really for the benefit of the jury.

#5: Do Not Discuss the Case: Jurors on the same case that you are a witness on may be in the same areas as you out in public. Because of this, remember not to discuss the case with anyone. Also, remember that the jurors may then have an opportunity to observe/judge how you act outside of the courtroom. 

#6: Be Professional: No matter what reason you’re in court for, be serious, avoid laughing, & avoid saying anything about the case until you’re actually on the witness stand.

#7: Being Sworn in As a Witness: When you’re called to testify, you’ll first be sworn in. When you take the oath, stand up straight, pay attention to the clerk, & say I do clearly.

#8: Tell the Truth: Telling the truth is the most important of all when testifying in court. Every true fact should be readily admitted. Don’t stop to figure out if your answer will help or hurt either side, just answer the questions to the best of your memory.

#9: Do Not Exaggerate: Don’t make overly broad statements when you’re testifying that you may have to correct. Be particularly careful responding to a question beginning with “Wouldn’t you agree that…?” The explanation should be in your own words, & you shouldn’t allow an attorney to put words in your mouth.

#10: Listen Carefully: When a witness gives testimony, they’re first asked questions by the attorney that called them to the stand. For you, this is an Assistant U.S. Attorney (AUSA). Questions from them are asked for the purpose of “direct examination”. When you’re questioned by the opposing side’s attorney, it’s called “cross examination”. This process is sometimes repeated several times to clearly address all aspects of the questions & answers. The basic purpose of direct examination is to tell the judge & jury what you know about the case. The basic purpose of cross examination is to raise doubts about the accuracy of your testimony. During cross examination, don’t get upset if you feel that you’re being doubted. The defense attorney is just doing their job.

#11: Don’t Lose Your Temper: An angry witness may exaggerate, appear as less than objective, or appear emotionally unstable. Remember to keep your temper when you’re testifying & always be courteous, even if the attorney questioning you seems discourteous. Don’t appear to be a “wise guy/know-it-all” because you will likely lose the respect of the judge & jury.

#12: Respond Verbally to All the Questions: Don’t nod your head for yes or no answers. Speak aloud so that the court reporter or recording device can hear you.

#13: Think Before You Speak: Listen carefully to the question you’re asked. If you don’t understand the question, asked to have it repeated. When answering, give a thoughtful & considered answer. Never give an answer without thinking about phrasing & the potential consequences for you & your client. Your answer shouldn’t be rushed, but pausing when answering simple questions isn’t necessary & it can imply a lack of knowledge & professionalism.

#14: Explain Your Answer: If necessary, explain your answer. When answering a question, do so in your own words, & if the question can’t truthfully be answered with simply “yes” or “no,” it’s okay to explain.

#15: Correct Your Mistakes: If you misstate your answer, correct it immediately. If your answer wasn’t clear, clarify it immediately. It’s better to correct yourself than for an attorney to find an error or inconsistency in your testimony. If you realize that you answered the question incorrectly, say “May I correct something I said earlier?” Sometimes witnesses give inconsistent testimony. If this happens to you, don’t get flustered, just explain why you were mistaken. The jury understands that people make honest mistakes.

#16: Don’t Volunteer Information: Only answer the questions that you’re asked. Don’t volunteer information that you’re not actually asked for. The judge & jury are interested in the facts that you have observed or personally know about. Don’t give your conclusion/opinions on the case, & don’t say what someone else has told you, unless you’re specifically asked to. Remember that as a social worker, or as a non-professional witness, all you can do is provide your opinion on a case/client. It is alright to specifically state that a statement you’re about to make is your opinion as a professional. (Like a disclaimer that it is not necessarily factual.)

#17: Don’t Set Yourself Up For Error: Unless you’re completely sure, avoid saying generalizing phrases like “That was the entire conversation,” or “Nothing else happened”. Instead, say something along the lines of “That’s all I recall”. After thinking more or another question is asked, you might remember another important detail & if you make a general statement, you could seem not knowledgeable, unprofessional, or appear to be trying to withhold information from the court.

#18: Objections By Counsel: When the judge interrupts you or an attorney objects, stop speaking immediately. Wait to continue speaking until the judge tells you to proceed.

#19: Only Testify to What You Know: Be confident & definitive in your answers whenever it’s possible. It’s important to understand that when you’re testifying regarding client behavior, you can only discuss your personal opinions based on your professional experience. When you’re asked a question regarding client behavior it’s helpful to begin your answer with “In my professional opinion…” This is done in case any additional information changes the workers clinical interpretation & the interpretation can then be adjusted in court without appearing not knowledgeable. 

In conclusion, it is important for social workers, especially criminal justice social workers, to be aware of how the criminal justice system & the field of social work overlap. Having a basic knowledge of the criminal justice system is extremely beneficial as a social worker & when testifying in court. 

*Here is a video showing a few more details about appearing in court. It’s from the Canadian Bar Association, but both the U.S. legal system & the Canadian legal system stem from English common law & share a similar structure and doctrines. Read more here.

Here is some beneficial legal terminology to be aware of as a social worker:

*All definitions were obtained from Michigan Criminal Law & Procedure, third edition (Beatty et al., 2014).

Abuse – The cruel or violent treatment of a human or animal.

Accessory – Someone who intentionally helps another person commit a felony (examples – giving advice before the crime, helping to conceal the evidence or the perpetrator). An accessory is usually not physically present during the crime.

Accomplice – Someone who helps another person (known as the principal) commit a crime. Unlike an accessory, an accomplice is usually present when the crime is committed. An accomplice is guilty of the same offense and usually receives the same sentence as the principal.

Accused – A person or persons formally charged but not yet tried for a crime.

Acquittal – A legal judgment, based on the decision to either a jury or a judge, that an accused is not guilty of the crime for which he or she has been charged or tried.

Actus Rea – The guilty act, otherwise states as a wrongful deed rendering the actor criminally liable.

Adjudication – The trial phase of a juvenile criminal proceeding.

Admissible Evidence – The evidence that a trial judge or jury may consider, because the rules of evidence deem it reliable.

Admission – Confession of a charge, an error, or a crime; acknowledgment.

Affidavit – A written statement made under oath, swearing to the truth of the contests of a document.

Allegation – A claim or statement of what a party intends to prove; the facts as one party claims they are.

Arraignment – The first appearance of the defendant before a judge or magistrate following his or her arrest in which the defendant is formally advised of charges, attorney may be appointed, and bail is set.

Arrest – The taking, seizing, or detaining of another person.

Assault — An attempt to commit a battery or an illegal act that caused the victim to reasonably fear a battery.

Bail/Bond – The money or property given to the court as security when an accused person is released before and during a trial with the agreement that the defendant will return to court when ordered to do so. Bail is forfeited if the defendant fails to return to court.

Battery — A forceful, violent, or offensive touching of the person or something closely connected with the victim.

Brief — A written argument by counsel arguing a case, which contains a summary of the facts of the case, pertinent laws, and an argument of how the law applies to the fact situation. Also called a memorandum of law.

Chain of Custody — The one who offers real evidence must account for the custody of the evidence from the moment it reaches his or her custody until the moment it is offered into evidence.

Custody — The person is under arrest or the person’s freedom has been deprived in any significant way.

Defense Attorney — An attorney who safeguards guaranteed rights of the accused.

Delinquent — A juvenile offender.

Deposition — An interview under oath.

Domestic Relationship — For purposes of the Domestic Violence Statute, a relationship that includes spouse or former spouse, resident or former resident of the same household, or persons who have a child in common.

Domestic Violence — An assault or assault and battery that occurs within a domestic relationship.

Due Process of Law — Procedures followed by law enforcement and courts to ensure the protection of an individual’s rights as assigned by the Constitution.

Entrapment— Occurs if (1) the police engage in impermissible conduct that would induce an otherwise law-abiding citizen to commit a crime in similar circumstances, or (2) the police engage in conduct so reprehensible that it cannot be tolerated by the court. 1

Felony — An offense for which the offender may be punished by death or imprisonment in state prison for more than one year.

Guardian Ad Litem — A guardian appointed by the court to represent the interests of infants, the unborn, or incompetent persons in legal actions.

Hearsay — A statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Holding — A court’s determination of a matter of law, a specific legal principle contained in an opinion, or a court’s ruling concerning a specific question.

Indictment— A formal written accusation issued by a grand jury or similar entity charging one or more people with a crime.

Indigent — An individual who has been found by a court to be indigent (stricken by poverty) within the last 6 months, who qualifies for and receives assistance, or who demonstrates an annual income below the current federal poverty guidelines.

Interrogation — Questioning in a criminal investigation that may elicit a self-incriminating response from an individual.

Jail — A facility that is operated by a local unit of government for the detention of a persons charged with, or convicted of, criminal offenses. Houses those convicted of offenses with sentences less than one year as well as those awaiting trial.

Jurisdiction — The official power to make legal decisions and judgements.

Jury — A body of people (typically twelve in number) sworn to give a verdict in a legal case on the basis of evidence submitted to them in court.

Magistrate — Magistrates assist the district court judge and are responsible for hearing informal civil infraction hearings, issuing search and arrest warrants, and set bail/ accept bond.

Mens Rea — Guilty mind (motive).

Mentally Incapable — When a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct. (Also referred to as NGRI-Not Guilty By Reason of Insanity).

Miranda Warning / Miranda Rights — By law (Miranda v. Arizona ruling by the United States Supreme Court) anyone being questioned by authorities must first receive a ‘Miranda Warning’. This requirement exists to prevent the police or other authorities from taking advantage of a person who does not know or fully understand their rights and thus speaks to the police and answers their questions without an attorney present. The Miranda Warning consists of the authorities explaining certain rights to a person before questioning them. These include: 1) You have the right to remain silent. 2) If you choose to speak, anything you say can be used against you in court. 3) If you decide to answer any questions, you may stop at any time and all questioning must cease. 4) You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.

Misdemeanor — A violation of a penal law of this state that is not a felony or a violation of an order, rule, or regulation of a state agency that is punishable by imprisonment or a fine that is not a civil fine.

Neglect — To fail to sufficiently and properly care for an individual or animal to the extent that the individual or animal’s health is jeopardized.

Notice to Appear — For minor offenses of 93-day misdemeanors or less, an appearance ticket may be issued in lieu of custodial arrest except in the cases of domestic violence and Personal Protection Order violations.

Perjury — Occurs when a person knowingly makes a false statement that is material to the case after taking a recognized oath.

Petition — A request for court action against a juvenile or removal for protective services.

Preliminary Breath Test (PBT) — A hand-held instrument utilized to determine presence or amount of alcohol in a person’s system.

Preliminary Examination — A hearing to determine if probable cause exists to believe a crime has been committed and to determine if probable cause exists that the defendant committed the offense.

Prison — A facility that houses prisoners committed to the jurisdiction of the department of corrections. Individuals housed here are must be sentenced to a minimum of one year.

Privilege — Certain confidential communications that cannot be used against a person (attorney/ client).

Probable Cause — Facts and circumstances sufficient to cause a person of reasonable caution to suspect the person to be arrested is committing or has committed a crime, or that the place to be searched contains the evidence sought.

Prosecuting Attorney — The chief law enforcement officer in a county, who authorizes complaints and represents state and county in all civil and criminal matters in county courts.

Protective Order — A personal protection order entered pursuant to law; conditions reasonably necessary for the protection of one or more named persons as part of an order for pretrial release, probation, removal from home, etc.

Reasonable Suspicion — An objective basis, supported by specific and articulable facts, for suspecting a person of committing a crime.

Ruling — The outcome of a court’s decision on a specific point or a case as a whole.

Search Warrant — A legal document authorizing a police officer or other official to enter and search premises.

Specific Intent — The prosecution must prove not only that the defendant did certain acts, but that he or she did the acts with the intent to cause a particular result.

Subpoena — A writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to appear.

Summons — A writing used to notify a person of an action that was commenced against him or her.

Testimony — The evidence given by a witness under oath. It does not include evidence from documents and other physical evidence.

Vulnerable Adult — An individual age 18 or over who, because of age, developmental disability,mental illness, or physical disability requires supervision or personal care or lacks the skills to live independently.

Warrant for Arrest (Bench Warrant) — Document issued by a judge if the information contained in the complaint establishes probable cause to substantiate the offense charged.

Writ – A judicial order directing a person to do something