By Bill E. Branscum
Public speaking is often reported to
be one of the most stressful experiences people find themselves
required to face. Testifying could aptly be described as public
speaking under pressure.
The ability to testify effectively is
one of the most valuable skills an investigator can possess. There
are very few aspects of the private investigator's professional
life that evoke the visceral response that accompanies being called
to testify; perhaps no other aspect of job performance is as revealing
about the investigator's experience. It can be an intimidating experience
for the neophyte and I have known many veteran investigators who
anxiously dreaded the prospect.
Virtually everyone who has published
material on this subject proffers opinions I disagree with, probably
because so many of them simply regurgitate the mantra in everything
previously written on the subject. For example, several sources
advise that witnesses should confine their answers to "yes," "no,"
or "I don't recall." Although the whole world seems to preach that,
it is abysmally poor advice.
By all means keep it short, the shorter
the better. If a question can be answered "yes" or "no," this is
the perfect answer so long as it is fully responsive to the question
and you should always admit that you don't know or cannot recall
when asked a question that you cannot answer. The problem is that
when people contrive to answer all questions yes or no, they leave
themselves no room to move.
Attorneys are argumentative by nature,
that's what they do. When it becomes obvious they have a witness
who is determined to answer yes or no, they capitalize on that by
baiting them into committing themselves to positions they should
have qualified. This is especially true in deposition where you
can be required to answer questions, and thereby commit yourself
to answers, that you would never be asked in trial - particularly
related to your opinions.
Remember, depositions are not even a
little bit like trial testimony. Your attorney will object to questions
which you will answer anyway. This is confusing to people new to
In a deposition, although there is nobody
to sustain or over rule the objection, you must always pause after
a question is asked to give your attorney time to object for the
record. The answer may not be admitted later once a judge has an
opportunity to rule on it, but you will answer the question once
the attorney has finished his objection unless specifically directed
not to answer.
There are some things you will not answer
and/or produce. If your attorney says he has directed the witness
not to answer, you can expect fireworks. Fireworks is fine, they
cannot hit you! You will not answer the question until a judge requires
that you respond.
You should also be aware that the attitude
and demeanor displayed by the attorneys involved in a deposition
is often dramatically different than the way they present at trial.
Attorneys may be deliberately rude, crude, obnoxious and offensive
to see what effect it has, and what your vulnerabilities are, when
they would never behave that way before the Court. I have read books
filled with cute and clever responses that the authors claim to
have used to put Clarence Darrow wannabe's in their place - I cringe
every time I see that sort of thing.
While I will agree that some attorneys
can be remarkably stupid, I admit that I have seen more than a few
make complete fools of themselves, and there is no doubt in my mind
that many are not nearly as cute and clever as they think they are,
none of that makes any difference. This is their game, they have
all the advantages and even the least competent of them is likely
to be far better at this than you are.
No matter what you encounter when called
to testify, always be cordial and professional. When they rephrase
your answer in an effort to put words in your mouth, you need not
argue semantics as the stenographer's record accurately reflects
what you said. When they say, "so you're saying . . .," don't argue,
don't get defensive and don't get cute. You can always ask that
the recorder simply read back what you said.
When the attorney launches into some
rhetorical nonsense that is not a question, don't fence with them
- ignore it. If pushed to respond, say, "I'm sorry but I didn't
understand the question."
I have seen it suggested that a witness
should wait 30 seconds before answering any question; thirty seconds
is an extraordinarily long time. Perhaps the better way to say it
would be wait what seems like thirty seconds (more like five to
ten) - the delay allows you to consider your answer and makes it
difficult for the attorney to "get into a rhythm."
In deposition you should always reflect
upon a question for as long as necessary to formulate a response
you are comfortable with. Keep in mind that whereas a transcript
does not reflect pauses at all, a poorly worded response is recorded
for posterity. Take your time.
I have seen it suggested that a person
who intends to testify should wear blue. That sounds silly but it
isn't. You should wear blue for precisely the same reason that you
would never wear purple or fluorescent pink. Colors do impact upon
impression. Wear blue, grey, even black perhaps, but a blue that
isn't "loud" is probably the best choice.
If asked to explain something in deposition
that could conceivably get you in trouble, DO NOT DEPEND ON YOUR
CLIENT'S ATTORNEY FOR ADVICE. I promise you that this could be a
serious mistake. Your client's attorney has a responsibility to
represent their interests to the exclusion of anyone else's. Should
you reach a point where your interests are inconsistent with theirs,
the absolute best you can hope that the attorney will do for you
is to make it clear that you need independent legal advice. Excuse
yourself and seek competent legal advice.
This begs a serious question, "what
do you do when you are facing questions related to an area where
you recognize that you have exercised poor judgment, or undeniably
did something wrong." The answer is, "that depends."
If the issue relates to a simple mistake,
and by that I mean anything you cannot be arrested, fined, sued
or lose your license over, you simply tell it like it is. If it
can be argued that you did the right thing, your client's attorney
will argue it; otherwise, you are going to be exposed as a human
being capable of making a mistake. You'll get over it. Never, ever
compound a simple mistake by lying or trying to cover it up.
If the issue involved is potentially
serious, you must accept the fact that your role has changed. You
need competent counsel and you must notify your insurance carrier
immediately. None of us wants to hire an attorney and we all hope
to keep from upsetting our insurance carriers, but do not yield
to the temptation to "hope it will go away."
I have seen recommendations to the effect
that you should turn the matter over to your insurance company and
rely upon them to defend your interests. In many cases, this is
exactly what you should do, but bear in mind that they can only
be counted on to defend your interests to the extent that your interests
are consonant with their own. In some situations, you would do well
to hire an attorney to represent you.
One thing does not change - never, ever,
under any circumstances compound a bad situation by lying or trying
to cover it up. I would encourage neophyte investigators and rookie
law enforcement officers to get that concept firmly embedded in
In summation, I would say that investigators
who make a good faith effort to do their job properly, and make
no effort to twist, distort or otherwise misrepresent the facts,
have no reason to fear being called to testify. Prepare yourself
beforehand by thoroughly reviewing your case, take your time, tell
the truth and everything will work out fine.
Branscum is a licensed Private Investigator and owner of Oracle
International, an investigative agency he established in Naples,
Florida following his career as a federal agent. His experience
includes investigations related to narcotics smuggling, money laundering,
securities fraud, the unlawful exportation of critical technology,
the sexual exploitation of children and contract murder.
International maintains a web site at http://www.OracleInternational.com.
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