Guidance for Victims Testifying in Criminal Cases

This guidance was developed for use in criminal cases in Colorado. Please check your local jurisdiction for any variance.

The majority of victims who are subpoenaed to testify at trial have never done it before. It’s totally normal to be nervous. Just remember: Your only job is to tell the truth. No more, no less.

BEFORE TESTIFYING

Preparing on Your Own

• You may choose to refresh your memory by thinking back to your own experience of what happened so you can recall facts more easily.

• Witnesses are often not allowed to hear other witnesses’ testimony. When a judge orders this, it is called sequestration. Its purpose is to minimize the chances of testimony has been influenced by someone else’s. In Colorado, victims in certain cases have the right to be present at trial. This includes being present for other people’s testimony. If you’d like to be present, it will be important to bring this up to the prosecutor. It’s their job to figure out how to uphold your right and protect the case.

• You can have a support person in the courtroom with you when you testify. This can be a friend, family member, and/or trained advocate. If your support person is another witness, let the prosecutor know so sequestration can be addressed. If the support person will remain sequestered, you can talk to a victim advocate to strategize other options that might be available to you.

• Sometimes victims need a break during testimony. You can talk to the prosecutor to come up with a plan/signal to ask for a break.

• Discuss any safety concerns you may have with the prosecutor or victim witness coordinator. They may be able to arrange protective measures like a police escort.

Preparing with the District Attorney’s Office

• The District Attorney (DA) should be preparing ahead of your testimony. If you have not heard from the DA’s office regarding trial prep, you can reach out.

• Trial prep may include reviewing any statements you’ve made to the DA’s office investigator, law enforcement, etc.

• Trial prep sometimes includes going through the kinds of questions the DA will be asking you on the stand. They may not be the exact questions that will arise. This is not for you to memorize your answers, but to help you feel prepared for how the questions might be asked.

• You may also be asked to review things like police reports, 9-1-1 call recordings, body camera footage, etc. which are called exhibits. Reviewing exhibits can be upsetting, so it can be a good idea to have a plan for after the prep meeting, like talking to a friend, a victim advocate, or taking a walk.

• Though you may review most exhibits, it’s possible you’ll see something during your testimony, or someone else’s, that you haven’t seen before. It can be a good idea to have a plan in case you see or hear something upsetting.

• During the prep meeting, you can ask to see the courtroom or ask the DA to draw a picture of it to get a better sense of who will be where. Often, the witness stand is in front of/next to where the defendant will be. It can be helpful to plan to just look at the attorney asking you questions or a support person in the crowd.

Day-of Testimony Logistics

• So much during trial comes down to the Jury, and that includes appearance. Consider wearing clean, court-appropriate clothing without any words or symbols on it to minimize chances of being seen as influencing the jury (which can cause a mistrial). If you have concerns about what you might wear, talk to your victim advocate who can provide resources or feedback.

• Court can include long waiting periods. You may want to pack water, a snack, and something to keep you occupied, like a book or music. Including charging cords for your phone or other electronics can also be helpful.

• Some higher-profile cases may catch the attention of the media and social media users. If you are concerned about this, you can mention it to the prosecutor or victim advocate to come up with a plan to deal with media.

• Consider not posting on social media during the trial, as anything you post could be used against you. It is often a good idea to strategize in advance of court who might want or need updates and how to provide those using other forms of communication such as email, text messages, etc.

• Victims should be offered a safe, quiet place for you to wait to be called into court, like the Victim Witness office. If this is not offered to you, ask the prosecutor and victim advocate where you might find a safe, quiet place while you wait.

• During trial, jurors, attorneys, and others observing court often move about public spaces within and close to the courthouse. Finding confidential places to discuss the case is important.

• Testimony can take a long time. If you need a break before one is announced, it’s okay to ask for one.

TESTIFYING

• Remember, your only job is to tell the truth. No more, no less.

• It’s totally normal to feel nervous. Whenever possible, pause, remind yourself to breathe, and stay grounded. You can bring something small to hold with you on the stand if it will help you stay grounded – just let the DA know and make sure it is not visible to the jury.

• Attorneys are often on their best behavior when in the courtroom. It is highly unusual for there to be a “gotcha” moment like on TV. No one should be approaching the witness box to talk to you or banging on the witness stand. If someone approaches the witness stand, it will likely be to give you a document and they will ask permission of the judge first.

• The judge will swear you in before you begin your testimony.

• After you are seated in the witness box, you can adjust your seat, the microphone, and pour yourself a glass of water. It is normal for all witnesses to take a moment to settle in. Often, your testimony will start when someone asks you to introduce yourself and spell your name for the record.

• You will likely need to identify the defendant. You do not have to look them in the eyes to do so if you do not want to. Most of the time, witnesses identify the defendant by stating which table they are sitting at in the room and naming a color of their clothing.

• The prosecutor will ask you open-ended questions (called direct examination) and the defense will ask you yes or no questions (called cross examination). This can be the hardest part of testimony as its normal to want to clarify the yes and no questions. After the defense is done asking questions, the DA can ask you to clarify or elaborate on anything that might be unclear from the cross examination (called redirect).

• You’ll have to respond out loud to questions asked. A head nod or other gesture will not be enough for the court record.

• Speak in your own words and do not try to memorize what you are going to say. Do not allow an attorney to put words in your mouth and stick to what you know.

• Try to speak clearly into the microphone and loudly enough for the jury to hear you.

• It’s okay if you forget something. The prosecutor can work to get you to say things if you forget (e.g. the DA asks something like “Can you tell me what happened that day?” and you forget to mention the defendant left after the crime, the prosecutor can ask you “Where was the defendant at that point?”). It is always more important to tell the truth than to remember all the details. It’s the prosecutor’s job to make sure they get what they need, not yours.

• The defense’s questions may be frustrating or upsetting. If you are feeling yourself getting agitated, try to take some deep breaths. Try to stay calm and courteous. Remember the prosecutor will get a chance to clean up anything that is misleading or lacks context that might be important for the jury.

• Stay hydrated while on the stand; take sips of water throughout.

• If you don’t remember something exactly, it’s important to say so. If you don’t remember something exactly but you know you said it on your statement to police, for example, you can say that.

• If you say something you didn’t mean to, or you think something came across in a way you didn’t intend, you can clarify your statement. Ask the judge, “May I go back to something I previously said?”

• Answer the questions – and nothing more. Don’t volunteer additional information unless you are asked. This is true with both the prosecutor and defense questions.

• If you don’t understand a question, say so. You can always ask the attorneys to repeat or rephrase a question so you can better understand it.

• Unless certain, don’t say “That’s all of the conversation” or “Nothing else happened”. Instead say, “That’s all I recall,” or “That’s all I remember happening”. It may be that after more thought or another question, you will remember something important.

• If there are multiple questions in one, you can ask for the attorney to slow things down and ask one question at a time.

• The DA’s questions are not a test of what you remember. It’s about making a record for the court, so it is important you are as accurate as possible even if that includes saying you don’t remember.

• If someone objects, stop and wait for the judge to make the decision on the objection. There are two ways it can go: 

  • If the objection is sustained, the question will be re-asked or the attorney will move on;
  • If the objection is overruled, you must answer the question as it was originally asked. Sometimes the judge’s decision takes some time, so it’s okay to ask for question to be repeated before answering.

• Objections are about an attorney having a legal issue around how the question is asked, not about you as a witness – there are rules around how that happens that can be confusing or feel weird. You may not hear why there was an objection or what the deliberation was. You don’t have to do anything other than follow what the judge is saying.

• Remember that your testimony is just one piece of a case. There may be things you are not asked because someone else is going to testify about it, not because it is not important or because the DA forgot to ask.

AFTER TESTIFYING

• Do not discuss your testimony (or anyone else’s) with anyone who isn’t confidential. If you’d like to talk with a support person, try to focus on how you’re feeling rather than on what was said.

• The prosecutor may not be available afterward to tell you how it went/how you did. If this is feedback you want, you can let the victim advocate know and they may be able to get information for you. Unfortunately, testifying is not likely to feel satisfying and you are unlikely to feel relief after you’re done. Rather, it tends to feel draining and tiring. It’s also common to feel like you made a mistake, “ruined” it, didn’t get to tell your full story, or let people down. Please try to be as gentle with yourself as possible and have a plan for how you will take care of yourself after doing this very hard thing.

If you need help or have questions about preparing to testify, Rocky Mountain

Victim Law Center can be a resource to you. Call 303-295-2001, send an email to

intake@rmvictimlaw.org, or request to schedule an intake at

https://www.rmvictimlaw.org/get-help