After 34 years as an audio forensic expert testifying in dozens of cases on the local State and Federal court levels, I have gained experience and knowledge about the trial process.
Today, more than ever, many of my cases go to trial. Fewer criminal cases take a plea offer and even fewer civil cases settle outside the courtroom. I am spending more and more time helping courts understand audio evidence.
I chose to write about my courtroom experiences because I am often asked about testifying by our clients. Testifying is a very important aspect of my profession.
First off, testifying in court requires extensive attention to detail both expected and unexpected. Testifying as an audio forensic expert requires an enhanced mental clarity, as the medium of audio may be interpreted subjectively, as well as objectively. My testimony as an audio forensic expert must be clear and precise, as well as simplified. It must include science, as well as opinions. It must also help the trier of fact understand the audio evidence for their decision-making process. One excellent trial lawyer I previously worked with put it this way; I tell what is real and what is fake.
Tip #1: Preparation is the Key to Successful Testimony
One of the most important elements of testifying is preparation. I always over-prepare and insist our client attorneys schedule time with me before I get on the plane and in person before entering the courtroom to prep for trial. You can never be too prepared.
My preparation includes reviewing all work products, notes, reports, and other expert depositions before going under oath. I also learn the client-lawyer’s trial strategy and my role in that strategy. Preparation also includes anticipating cross-examination.
Last November, I testified for the Attorney General for the State of New York in a negligent homicide in front of two Grand Juries. I had an agenda for preparation, but my client lawyer had an even more intense preparation planned. We prepped my testimony for almost 8 hours over two days. There were 30 defendants and 8 defense lawyers. Since we anticipated cross there were no questions at all from any of the lawyers! Each one stood up and spoke ‘No questions your honor’. Why? Because we did a great job preparing and anticipating cross; we brought out all questions on direct.
Tip #2: Look like an Expert
One of the most crucial aspects of testifying is the expert’s appearance. First impressions are extremely important especially when you are going to testify in court in front of a judge, jury and opposing counsel. Your credibility is directly proportionate to the way you look. Unfortunately, in a professional environment such as a courtroom, pre-conceived judgment from the jury is more than likely to happen. You want to make the best, most professional first impression possible. Forensic experts need to look conservative. Some lawyers will not retain a forensic expert with visible tattoos, piercings or radical haircuts.
I remember testifying in Boston a few years back. Our trial team had two other experts one of whom I never would have guessed was going to testify. He did not wear a tie; his hair was a mess, and his clothing was ill-fitting. I am not picking on this expert, but rather giving you a vision of what NOT to look like when testifying. On one hand, I shouldn’t be so judgmental, on the other hand, this is what a judge and jury do; judge!
Experts are paid well for their expertise; they should look the part.
Tip #3: Communicate with Conviction
High-quality communication is another ingredient to the success of your testimony. Not only does your communication matter for trial lawyers, but also your ability to communicate your findings to the jury is just as important. When answering questions under oath, I keep my answers short and to the point and resist the temptation to ramble on. I include scientific terms in my answers but make sure to simplify them if a juror’s body language implies confusion. Communicating with conviction also requires great eye contact. When answering questions, I always begin my eye contact with the person who asked the question. Then while continuing to answer, I make eye contact with the rest of the courtroom including the jury, judge and opposing counsel. One major mistake I often see experts make is answering questions with tunnel vision, staring only at the person asking the questions. It’s not a deal-breaker but will reduce the impact of your words and testimony.
Testifying as an audio forensic expert about forensic audio enhancement can be difficult due to the potentially low courtroom acoustics and environment typically found in most courtrooms. Enhanced audio evidence is perceived when played in the courtroom. The problem with playing audio in the courtroom there is no visual representation of what the audio is portraying. It is important that everyone in the court can hear and comprehend your audio evidence. This too is communication. Equally important is that your testimony has to be crystal clear in helping guide the jury to understand your science and opinions.
I often include a forensic transcript as part of my work product. A forensic transcript is created by me using critical listening skills I have developed over 34 years practicing as an audio forensic expert. It ends with a paragraph like this: ‘Based on the pains and penalties of perjury I testify that the above forensic transcript was prepared by me and is an accurate representation of the events as they occurred at the time of recording so help me.’ Then I sign it and notarize if necessary.
Aside from these three tips, I focus on a healthy mindset. I make sure to get plenty of rest the night before. I drink a lot of water and eat healthily. A healthy mindset will contribute to a successful testimony. Testifying is stressful, but the key to success is preparation, appearance, and communication.