Giving evidence in court can be very nerve-racking. I am a lawyer with many years experience in court but I have had two occasions to testify (so far), so I have been on both sides of the witness box.
The core of our justice system is the witness. Judges, jurors, clerks and lawyers all defer to the witness. When that moment to testify occurs, the witnesses led to the witness box with intentional pomp and ceremony, all the more to impress upon the individual the importance of what they are about to do. Court cases come with serious consequences for the litigants so the court's bend over backwards to mark the moment with the respect it has deserved since time immemorial.
The witness is isolated in a box usually arranged in such a manner that the entire courtroom can observe the testimony.
A witness should dress properly for court; as they would for a business meeting. I do not recommend testifying with a revealing dress on or a t-shirt that has on it, any kind of message.
A witness is not there to save their reputation or to wave a flag of support to a particular side to the dispute.
Even a litigant, was called into the witness box, must understand that responsibility is not that of a salesman but simply honesty and truthfulness without any embellishment, exaggeration or assumption. In words as succinct and as black and white as possible, the witness merely tells the court what is has observed in the past, as prompted by a lawyer or, where the other side is self represented, by the other side.
The flow of information or truth, is to the jurors or, if there is no jury, to the judge. They are the finders of fact. They have to re-create the past and make a statement about what happened based entirely on evidence; from which the judge bases his or her judgment.
More times than not, the judicial finding of fact differs from the actual truth but in most cases, on minor points of detail. In this regard, our justice system shows its greatest flaw but with the present state of technology, it is the best that we can do (if there were video cameras everywhere, evidence would approach perfection).
Once you have been sworn in, sit down. Ask for, or pour yourself a glass of water. If you like to use your hands when you talk, be careful where you place your glass of water as I have often seen a nervous witness splatter her glass of water this way. It interrupts proceedings and annoys the judge.
Speak up (and slowly) so all can hear you, even if it feels unnatural.
If there is contempt in your evidence, you may think that you are persuading the judge but you are not; you are demonstrating a bias.
When you are asked a question, take a moment to make sure you understand the question. If you do not understand the question, say so. The judge is there to make sure that you are not bullied or intimidated so take advantage of that and do not get swept away by a lawyer’s intentionally rapid-fire cadence.
The judges and sheriffs are there to protect a witness for many form of intimidation that may come from other people in the courtroom.
In theory, nothing a lawyer says in a question is evidence and is completely ignored by the finder of fact. It is only your answer that is evidence unless by your reply, you incorporate the assumptions made in the question. That is why you should always think before answering "yes" or "no".
The most peculiar thing about testifying is that contrary to a social conversation, you direct your answer not to the person asking the question, but to the finder of fact. In other words, when you are ready to answer the lawyer's question, turn your head towards the judge and give your answer to the judge - not to the lawyer. This would be rude in a social setting but it is preferred in court. After all, the judge may have to decide who is telling the truth and observation is the best way.
Kinds of Questions
Lawyers cannot ask questions of a fishing variety but are expected to remain on point. In an old law book quoted in Curiosities of the Law Reporters, the Court mentioned this:
"In examining a witness, counsel cannot question the whole life of the witness, as that he is a whore-master, etc. But if he hath done such a notorious fact which is a just exception against him, then they may except against him."
Most witnesses face three kinds of questioning.
The questioning coming from the lawyer or the party that called you as a witness is called examination in direct and it means that the questioner cannot ask leading questions. In other words, the lawyer for the examination in direct may say: "Tell the court what happened on May 13, 2004" and that would be your cue to fully describe the relevant event. The question would not be framed: "Did you observe the defendant cause the huge car crash on Douglas Street at 2 PM on a sunny May 13, 2004?"
Obviously, a witness should be prepared to properly organize her evidence and this is usually done by following the lawyer’s cues. By the same token, if this method is overused and appears to be too scripted, the witness may lose credibility with the finder of fact. The "evidence" may seem too slick.
Rare is the witness that remembers with photographic memory. It is not only acceptable to be unable to recall all salient facts but it is often taken as a mark of honesty in regards to your evidence as a whole. If you don't remember something, say so.
The second kind of questioning his cross-examination which is done by whichever side did not call you as a witness. Cross examination means that the lawyer may ask you leading questions. You are expected to be careful and confirm or deny the many proposals of fact that the lawyer will couch into his question, such as.
"Isn't it true that you are on anti-depressants?"
"Haven’t you already been convicted for assault?"
"I put it to you that you stabbed the victim. Isn't that correct?"
If what the lawyer is proposing in cross-examination is accurate and in words that reflect the truth as you recall it, then you may simply reply yes. If not, give the finder of fact the true version of events. Do not let yourself be bullied or trapped by the aggressive leading questions of the cross examiner.
If you get ruffled and feel a bit of anger stirring, have a sip of water - impose upon yourself a momentary "time-out", perhaps to realize that an explosion of anger is precisely what is being sought of you by the questioner, all to decrease your credibility with the finder of fact.
Lawyers sometimes fish for a "home run" with an adverse witness which is when a witness breaks-down or melts-down. The lawyer knows that a judge may suspect that you are trying to manipulate him or her and thus read something entirely different from what you intended by a sudden flow of tears, a shake of the fist, or a wild invective.
The third kind of questioning comes from the judge and is usually very politely framed and may or may not be in the form of leading question.
Some judges like to ask a lot of questions, especially when they are concerned that the lawyers are not doing their job in the quest for justice.
Other judges do not ask questions. They feel that litigants ought to sink or float based on their ability or that of their lawyers to get the necessary evidence out.
A further issue for witnesses is the handling of documents. Documents are golden because they do not depend on the frailties of human memory.
Make sure you have your reading glasses available..
As you are sitting in the witness stand, a lawyer will approach you with a piece of paper and ask you if you recognize the document and if so, to describe to the court what the document is.
If you equivocate at this moment, you could really harm the case.
Almost all documents can only get into the evidence through the magic door of a witness who can use the wand of their recognition.
Without a witness prepared to recognize a document for what it is, the document cannot get before the court.
The process of authenticating a document through a witness is not to impeach what is said in the document so do not be confused. Look at the document. Take a moment to ensure that from the first to the last page, it is a document that you recognize. If you do recognize it, say so. If you have not already done so, the lawyer might ask you to describe to the court what the document is. That does not mean that you agree with the content of the document; just that it is what it is:
"I do recognize this document Your Honor. This is an e-mail I sent to Tom Jones last year."
At that point, the proceedings will be interrupted by a short judicial dance: the original or best copy of the document will be taken back from you, handed over by the lawyer, along with several copies, to the judge, through the clerk, with the request that it be marked as an exhibit. The judge will look at the document and invariably, if there are no objections, will say something like "Very well. Exhibit 3."
At that point, the court clerk will mark the exhibit by writing on it, or use an ink stamp or an adhesive label, identifying the document with the proceedings and that it is exhibit #3, and you get the marked exhibit back.
From that point on, everybody is entitled to refer to that document not by its common name such as "the Tom Jones e-mail" but as Exhibit #3. The process of lettering or numbering documents makes the organization of material used in court much easier during trial and if there is ever an appeal.
Every witness should be made aware of the documents that will be shown to him or her during their testimony to make sure that the documents are confidently recognized when presented to them.
- Duhaime, Lloyd, Crazy Justice Videos
- Duhaime, Lloyd, The Dumbest Things Ever Said in Court
- Duhaime, Lloyd, The Unrepresented Party's Survival Guide to Trial
- Heard, Franklin Fiske, Curiosities of the Law Reporters (Boston: W.S. Bartlett, 1871), page 113.
- Murray, Jack, 16 Tips On Testifying in Court