I am not sure that I will recommend that you
testify. I make that decision after I hear the
States evidence. The final decision as to
whether to testify is always yours, though I
would suggest that you trust me as I have much
experience in these matters. If you do testify
there are some absolute unbendable rules:
- Tell the truth. Never lie or speculate as
a witness. Tell the truth even if it hurts your
- I will be responsible for handling the case.
Your only responsibility is to be entirely and
- Answer the question first. If you don't know
the answer that's a fair answer as long as its
- Explanations come after answers. The less you
explain the better I like it. The more you talk
the less I'm in control. The less I'm in control
the worse your case will turn out in the end.
- Do not respond to argumentative or insulting
questions in an argumentative or insulting
manner. Your task is to remain calm, cool and
collected and to be someone that everybody knows
is telling the truth. Maintain a level head,
even in difficult circumstances, and you win the
- Look the person who asks the question
directly in the eye and answer the question.
Answers to questions are yes, no, maybe, I'm not
sure, I don't know. Explanations come after
answers. I prefer that you not explain unless it
is absolutely necessary to do so. If you do
explain, explain as briefly as possible. If we
need further explanation I will certainly ask
you to do that.
Let me decide what is important. I know that
at times people feel put upon by the police or
the system and feel that they have been wronged.
The best time to reveal your anger with the
system is not during your testimony in a
criminal trial. Stay completely on topic and
only talk about things that are important to
your case at this time. Your other concerns can
be addressed at another time and in other
Don't look at me for help, don't fidget,
don't look away from the questioner for any
reason. Answer by looking them directly in the
eye and only look away when you are completely
Try to avoid crossing your arms or legs while
you are sitting in the witness chair. The best
and most truthful posture that a person can
adopt is open. When you cross your arms you look
as if you are hiding something or being
dishonest, and how you look is how you are
perceived in many cases.
Listen carefully to each question. Do not
anticipate questions and do not read things into
questions that are not asked. If you don't
understand the question ask to have it repeated
and then give a careful and thoughtful answer.
If you realize your answer was wrong correct it
immediately. If you realize your answer was
unclear clarify it immediately.
If someone says objection stop talking
immediately even if you are in the middle of a
word or the middle of a sentence. The most
important thing we do as witnesses is to keep
the judge happy. The judge has control of the
courtroom and expects you to obey him or her
quickly and without question. I will be sure to
let you say what you feel is important if I feel
that it is relevant to your case. If it is not
relevant we will discuss it later. After the
objection the judge will rule: 1) that the
objection is sustained which means you can't say
what you were going to say or 2) that it is
overruled which means you can answer. In either
case feel free to ask what to do after the
conversation between the judges and the lawyers.
If the judge interrupts you stop immediately
and ask for direction once the judge has
finished speaking. Never interrupt a judge or an
Do not answer a question with a question. If
you can not fairly answer a question, say "I can
not fairly answer that question because....."
and very briefly explain why you can not answer
If you are asked a question that you do not
want to answer and no one objects you must
answer the question. This is the peril of being
a witness. When questions are asked you must
answer them truthfully and completely.
If you are asked if you have been over your
case with anyone, the answer to that question is
yes. Of course we have prepared your case and
prepared your testimony. Only a foolish attorney
would put on a witness unprepared. You should
not be embarrassed about your preparation and
should freely admit that you are nervous and
uncomfortable on the witness stand.
Some questions are designed to test your
truthfulness. They will be easy: tell the truth.
Answer the question as honestly as you can and
these questions will fail to elicit dishonest
testimony and to discredit your other testimony.
Don't answer the question you thought you heard,
answer the question that was actually asked.
You may pause before you answer to collect
your thoughts. If you can answer without
pausing, do so. A careful answer is much
preferable to a quick, incorrect, unconsidered
You will likely be asked a question like
this "In the last 10 years what have you been
convicted of that carries a sentence of 90 days
or more in jail?" If the answer is nothing then
that is what you should answer. If you have been
convicted of things but you are not sure of the
time that you could have spent in jail, ask me
before you testify. If your record is lengthy
then give a quick summary of it and say if you
are not sure of the time that you could have
spent in jail for these charges. I don't think
those questions or your answers are effective in
discrediting your testimony unless you lie about
Don't try to be more clever than I am.
Though that would be easy, the goal for you is
to be and appear honest, forthright and
straightforward. My goal is to win your case. If
you achieve your goal, it will more likely that
I will achieve mine.
Remember you have entrusted me to handle your
case. I will do so to the best of my ability.
You are not in charge of the legal aspects of
your case so don't over think them. Your job as
a witness is to be honest and truthful,
forthright and candid. Focus on those goals and
you will be an asset to the case.
Sample Cross-Examination Questions That the Prosecutor May Ask
If you have prepared properly and understand the areas of your testimony that the prosecution will most likely attempt to impeach you with then the following types of questions will not come as a surprise. Going over these questions may help you avoid becoming confused or being tricked by the government during your testimony, however, they are only offered as examples of common types of impeachment questions. The questions should not be used as a script, as every case and every witness differs. However, a general understanding of the government lawyer's trick questions will prevent disaster on the witness stand by teaching you to present a well thought out and truthful response.
- Q. You discussed your testimony with your attorney [or the defense attorney] prior to coming here today, didn't you?
Bad response: No [or simply] yes.
Good response: Of course, I've never testified before. I had a lot of questions about what was going to happen during the trial, and about what types of questions the prosecutor might ask me. Mr. Lawyer helped explain the trial process to me so I could better understand what to expect.
Q. You also discussed your version of the facts with the other defense witnesses didn't you? [or] You met wit the other defense witnesses to agree on what was important, didn't you?
Bad response: Yes [or] no.
Good response: We all agreed that it was
important to discuss the event to remember as
many facts as possible for the trial. We didn't
all remember the same things, but the discussion
helped refresh our memories so that we wouldn't
forget to leave anything out when we got the
chance to talk to the jury/court. I think the
jury/court should know everything.
Q. Isn't it true that your lawyer told you
what your answers to my questions should be?
[or] Your lawyer told you what to say?
Bad Response: Yes.
Good response: Yes, he told me to answer all
your questions truthfully, but to listen
carefully to your questions because they might
be confusing. He also told me not to let you put
words in my mouth. I was told not to guess if I
was not sure, but to tell the truth and say I
was not sure.
Reasoning: These types of questions imply
that your testimony has been rehearsed. You
should expose the prosecutor's tricks by
providing truthful and acceptable reasons for
your pretrial interviews with the defense
attorney and the other witnesses. Don't let the
prosecutor make it look as though you've done
something wrong. Just be honest. Of course the
jury/court knows you met with your attorney and
the other witnesses. Make sure you let the
jury/court know that no one got together to try
and nail down the "perfect story." Your answer
should let the jury/court know that you want the
"whole truth" out. Tell them that the
instructions you received were to tell the
Bias or Motive to Lie
Q. Mr. Defendant, you don't want to be
convicted for driving while intoxicated do you?
[or] Mr. Witness, you don't want to see your
(friend, co-worker, etc.) convicted for driving
while intoxicated do you?
Bad response: No.
Defendant's Good response: I was not driving
while intoxicated. I'm innocent. No innocent
person would want to be convicted for something
he didn't do. [or]
Witness' Good response: I wouldn't want to see
any innocent person be convicted.
Q. You'd do anything to keep from being
convicted wouldn't you? [or] You'd do just about
anything to help your (friend, co-worker, etc.)
from being convicted, wouldn't you?
Bad response: Yes, of course.
Good response: I would not lie. I swore to
tell the truth. If I were guilty I would accept
Good response: I swore to tell the truth.
Good response: I would not lie. My integrity
is too important to me to give up my honesty. I
gave an oath.
Questions about Intoxication
Q. Mr. Witness, how do you define intoxication?
Bad response: Drunk; can't walk; falling down;
Good response: Loss of normal use of mental
or physical faculties. [or]
Good response: Impairment, either mental or
physical, to the extent that one's normal
abilities are appreciably impaired.
Reasoning: Be sure you let the jury/court
know that your opinions are based on an accurate
understanding of the legal definitions they are
Q. Is that the definition you've always used
Bad response: Yes (unless it's true).
Good response: No, that's the legal
definition of intoxication as my attorney
explained it to me. He said I needed to
understand it for the trial.
Q. How would you generally describe an
Bad response: Slurred speech, bloodshot eyes,
physical or mental impairment, loss of balance.
Good response: I think it's probably
different for each person. It's difficult to
speak in general because some people are just
clumsy or uncoordinated and some people have
physical conditions like a natural slur or a
Q. Would you agree with me that an
intoxicated person might sway when standing? (or
might forget the alphabet, slur his speech, lose
his balance, etc.) [or] Would you agree with me
that an intoxicated person might not be able to
walk a straight line? (or might not be able to
touch his nose, balance on one leg, estimate 30
Bad response: Yes.
Good response: I think it would depend on
what is normal for the person being evaluated.
Alcohol affects people differently. [or]
Good response: Sure, it's possible, but it
would depend on the person, how much he or she
drank, and other things such as injuries,
fatigue, health, etc.
Q. Who do you believe is the better judge of
whether someone is intoxicated, the person
drinking or someone who has not been drinking?
Bad response: The person who has not been
drinking would be a better judge.
Good response: I think someone who knows the
person drinking would be the best judge. It
would be difficult to judge a stranger without
knowing what is normal for the person. It would
be a guessing game. If, however, you are really
referring to the officer and I, I was not
intoxicated and I know myself. I don't have to
guess about my normal- I know what it is.
Q. Mr. Witness, are you telling this jury
that you felt no effect whatsoever from the
alcohol that you had consumed?
Bad response: I may have felt a little buzzed.
Good response: I may have felt some
sensation, but it did not affect my mental or
Memory and Ability to Observe
Q. Mr. Witness, you were drinking at about the same rate as the defendant that night, weren't you?
Bad response: Yes. [or] No, I was probably drinking more than he was.
Good response: About the same rate (or less if it's true), but I wasn't actually counting how many drinks the defendant was having, or how quickly or slowly he drank them.
Q. Then your mental (or physical) faculties
would have been affected to about the same
degree that the defendant's were?
Bad response: Yes, we probably felt the same.
Good response: I'm sure it didn't affect us
the same because we are not the same people.
However, I do know that I was not intoxicated,
so if you're saying we were the same then the
defendant could not have been intoxicated
because I was not intoxicated.
Q. Do you think your memory is better than
the officer's is?
Bad response: Yes. [or] No.
Good response: I don't know what the officer
remembers. I'm not like the Officer where I see
lots of different cases where I have to write
down stuff to keep one case from running into
another. What I do know is that being arrested
made an impression on me that I will never
forget. I don't think anyone remembers that
night better than I do.
Q. Mr. Witness are you saying that the
officer is lying?
Bad response: Yes, he's a liar.
Good response: I don't think he's lying, but he might be. I'd rather give him the benefit of the doubt that he is mistaken. I think he misinterpreted what he saw because he didn't know me.
Q. Mr. Witness, if what you've said about the Defendant is true, then the officers had no reason to arrest him, right?
Bad response: Yes, that is correct.
Good response: I believe that once an officer
smells alcohol on a driver's breath, it's
usually downhill from there. With all the
political issues involved around DWI, I think
the police are afraid to let people go after
they stop them and smell alcohol.
Q. Mr. Witness, isn't it possible that you
don't remember many details about that night
because you were so intoxicated?
Bad Response: I guess it's possible. [or simply,
Good Response: I was not intoxicated. I think
that once the officers smelled alcohol on my
breath they viewed every little thing about me
that they thought was unusual as being caused by
Field Sobriety Tests
Q. At the police station (or on the roadside
with the officer), you had the opportunity to
perform sobriety tests to demonstrate your
mental and physical faculties but you chose not
to, didn't you? Isn't it true that you didn't
take those tests because you knew you were too
intoxicated to pass them?
Bad Response: I knew it wouldn't be in my best
interest to take the tests because I didn't know
how I would do on them. [or] I couldn't pass
those tests sober.
Good response: I have always heard that when
a person is being investigated by the police or
is under arrest he should talk to a lawyer
before he says or does anything. [or]
Good response: I chose not to do the tests
because I felt that the officer had already made
up his mind to arrest me. I didn't believe
taking the tests was going to change that. Plus,
he didn't have a video camera to record my
performance for the jury/court to look at, and I
didn't think it was fair.
Q. So you admit you had the opportunity to
show the jury/court, (either on tape or through
the officer's observations) that you were not
intoxicated, and you didn't take it?
Bad response: Yes.
Good response: I didn't want to do anything
until I could ask a lawyer what my rights were
and whether I should just go along with
Good response: I knew I didn't have to prove
my innocence, isn't that the law?
Q. So what you're saying is that you
intentionally or knowingly withheld evidence
from the members of this jury/court that could
have been helpful to them in making a decision
in this case?
Bad response: Yes [or] I was afraid it might
look bad on tape.
Good response: What I'm saying is that I
didn't want to participate in the investigation
against me without first speaking with a lawyer
about what my rights were and to find out
whether I should just go along with everything.
Q. In your video (or according to the
officer) during the sobriety tests you failed to
count in thousands as the officer instructed (or
didn't keep your arms at your sides; or didn't
turn properly on the walk-the-line test; or
didn't point your toe during the balance test),
didn't you understand the officer's
instructions, or were you too impaired?
Bad response: I don't know why I did that, I
guess I didn't understand.
Good response: I know those tests are easy
for the officer, he's probably practiced them
thousands of times, but I had never been asked
to do this stuff before (if it's true) and I was
extremely nervous. [or]
Good response: What you see is normal. I
normally use my arms for balance, just like
everyone else. The tests were unfair because
what the officer was asking me to do is
unnatural. I don't know anyone who could do
these on their first try when they were as
nervous as I was and perform all those tests
exactly like the officer wanted me to.
Q. Your balance was certainly impaired to
some degree that night, wasn't it? After all,
you were swaying during the head tilt test,
Bad response: No (unless it's true). [or] I
guess I was swaying a little bit.
Good response: I think everyone has a natural
sway to some extent under those conditions.
Anyway, the officer didn't tell me not to sway
during that test. All he told me to do was tilt
my head back, close my eyes, and estimate thirty
seconds. He never said anything about not
swaying. It's not fair to grade me on swaying if
I was not told to refrain from swaying. If he
had told me not to sway during the instructions
at least I would have had a fair chance at
passing the test.
Q. Mr. Defendant, you refused to take the
breath test because you knew you were too
intoxicated to pass it, right? You knew it would
be all over?
Bad response: I didn't want to take any chances,
I knew it wasn't in my best interest.
Good response: I didn't take the test because
I don't know anything about the machine, or how
it is supposed to work. I wanted to at least
talk to a lawyer to find out what I should do.
Then they told me I couldn't talk to one. I
didn't think that was fair. I couldn't make an
educated decision without more information. [or]
Good response: I've heard there is a lot of
controversy about the machine being unreliable.
I wasn't about to take a chance on some machine.
I'd rather trust a jury/court of my fellow
citizens or an impartial judge. To me that seems
like a smarter decision.
Q. Mr. Defendant, you were aware of the
consequences of refusing a breath test, yet you
thought it would be safer to just lose your
license than to blow into the intoxilyzer/breathalyzer
Bad response: Yes [or] I didn't want to risk
possibly failing the test.
Good response: I wasn't happy about having to
make a decision that would lead to a possible
suspension of my license, but I wanted to speak
with a lawyer first and I wasn't about to be
coerced into giving up my good judgment simply
because I might lose my license for a while.
Q. So you chose to lose your license instead
of just taking the test?
Bad response: Yes, that's correct [or] I didn't
want to risk failing the test.
Good response: I simply chose not to take the
Q. By your own testimony you were not with the Defendant on the night of his arrest. How could you possibly know what his condition was
at the time he was stopped?
Bad response: I can't. I wasn't there.
Good response: I may not have been with him, but I have seen the video made shortly after his arrest and he looks perfectly normal on it to me. He looks a little nervous (or scared, angry, frustrated, etc.), but his mental and physical faculties are seemed fine.
Good response: I may not have been with him at the time he was stopped, but I've known the defendant (state length of time) and he just isn't the type of person who would get behind the wheel of a car if he was intoxicated. He has a reputation in the community for being a very reasonable person.
Questions about Drinking Alcohol
Q. Mr. Witness, what do you normally drink when you go out?
Bad response: Beer (or wine, or anything with
Good response: I don't usually drink when I
go out, although I'll occasionally have a drink
Q. How many drinks did you have on the night
Bad response: I'm not sure, I don't remember.
Good response: I know I initially told the
officer I'd had three or four drinks, but at the
time I was so nervous that I didn't really stop
to think about it. Now that I've had time to
carefully go over all the details of the
evening, I'm sure that I only drank three
drinks. I did order a fourth, but I only took
one or two sips from it and never finished the
Good response: Just like I told the officer
that night on the roadside, I only had three
Q. What time did you have your first drink,
Bad response: I had my first one at eight, then
nine, then nine-thirty.
Good response: I'm not sure about exact
times, but I know I ordered my first drink about
eight, when I got to the restaurant. I probably
had my second drink about forty-five minutes
later, during dinner.
Q. How much had you had to eat that night?
Bad response: I didn't eat dinner, so I probably
had an empty stomach.
Good response: [List everything you had to
eat that day. The amount of food in your stomach
affects the rate that alcohol is absorbed in the
Q. Mr. Witness, it's true that we only have
your word to rely on for the number of drinks
Bad response: Yes, I suppose that's true.
Good response: The proof can also be seen on
the video tape, and also in the testimony of
people who know that I was not impaired that
Good response: If you are insinuating that I
would lie about how many drinks I had to mislead
the jury/court because no one can contradict me,
you are wrong. I want the jury/court to know the
Q. Mr. Witness, have you been intoxicated
Q. Mr. Witness, have you seen the defendant
Bad response: Yes.
Good response: Yes, last New Year's Eve we
had the defendant and his wife over to our home
to celebrate the holiday. We had a nice time,
and Mr. and Mrs. Defendant spent the night [or]
Good response: Back when I was younger I used to
go out and meet friends occasionally. We always
had a designated driver or just took taxis
though when we planned on drinking.
Q. How many drinks does it take to get you
(or the defendant) intoxicated?
Bad response: Six [or any number of drinks].
Good response: It would depend on how much
I've eaten, how tired I am, what I'm drinking,
how fast I'm drinking, etc. It's impossible to
simply choose a number. If, however, your real
question is whether or not the ____ (number) of
drinks I had that night over _____ (hours) on a
full stomach made me intoxicated, then, the
answer is no, that number did not make me
Q. Would you attend an important business
meeting after consuming the same number of
drinks you had (or that the Defendant had) on
the night in question?
Bad response: No. [or] Yes.
Good response: I'm sure I would be able to,
however, I probably would not simply because
alcohol is a social thing and it has no place in
a professional or work setting.
Q. If you were a commercial airline pilot
would you feel comfortable flying a jet full of
passengers across the country after consuming
the same number of drinks you had (or the
Defendant had) on the night in question?
Bad response: No, of course not. It would be too
Good response: If I were a licensed pilot I'm
sure the number of drinks I consumed that night
would have no effect on my (hypothetical) normal
flying abilities, however, if I were a pilot I
would never fly after consuming any alcoholic
beverages simply because alcohol is a social
thing and it has no place in a professional
setting such as you have described.
Q. If you were a school bus driver would you
feel comfortable driving a bus full of children
around the city after consuming the same number
of drinks you had (or that the Defendant had) on
the night in question?
Bad response: No, of course not, I wouldn't want
to take any chance of injuring the children [or]
it just wouldn't be worth the risk.
Good response: Again, I'm sure I would be
able to without any problems at all, however, I
would never do that simply because alcohol is a
social thing, it has no place around children or
minors, and no place in a professional or work
Q. Would you feel comfortable driving around
your own children, or the children of a friend
after consuming the same number of drinks that
you had (or the Defendant had) on the night in
Bad response: No, I wouldn't want to take any
chance of injuring them.
Good response: Again, although I'm sure I
would be able to without any problems at all,
alcohol simply has no place around children,
even in small amounts.
Q. Would you allow a surgeon who had that
many drinks to operate on you or a member of
Bad response: No, absolutely not.
Good response: Although he might be able to,
if I didn't know anything about him I'd probably
ask for another Doctor to avoid any risk. Then
again, surgery is a pretty nerve wracking
experience. Maybe I'd want him to have a drink
to steady his nerves.
Questions about Punishment
Q. Mr. Defendant, now that you've been
convicted, would you go ahead and admit to the
jury/court that you were really guilty?
Bad response: Yes, I guess I really did have too
much to drink that night.
Good response: I can accept the
jury's/court's verdict, but now it's time to
Q. Mr. Character Witness, have you heard that
the Defendant was previously convicted of DWI
(or criminal offense)?
Bad response: No, I didn't know that.
Good response: Yes, I'm aware that he made a
mistake in the past.
Q. Does the fact that he's been convicted
before change your opinion about his character?
Bad response: Yes. [or simply] No.
Good response: Everybody makes mistakes,
we're all human. The fact that the defendant
made a mistake in the past does not change my
opinion that he is a responsible and productive
citizen now. As far as this offense is
concerned, the fact that the jury found he was
slightly impaired and shouldn't have been
driving does not make him a bad person. If he
had been seriously impaired, or if he had been
involved in an accident, I would certainly agree
that such irresponsible behavior is totally
unacceptable. I, however, don't see this as
being one of those types of cases. I understand
that the jury/court believes he was guilty, but
I still believe he was capable of safely
operating his vehicle that night. Regardless, I
know this whole event has made a lasting
impression on him. I am confident this will
never happen again.
Q. You would agree that now the defendant has
been convicted, he does deserve some type of
punishment, wouldn't you?
Bad response: Yes.
Good response: I think it's clear that the
defendant has a problem with his drinking,
however, I think it's our job as a society to
not only punish people who make these mistakes,
but more importantly to rehabilitate them and
teach them how to be responsible citizens. In
Mr. Defendant's case, I believe this would be
best achieved by placing him on some type of
probation or court supervision so that he will
have the opportunity to receive
treatment/alcohol education and move forward
with his life. Simply placing him in jail won't
help him deal with a hidden alcohol problem, if
he has one, or make him more aware of alcohol