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How can I be a good witness in court?

October 29, 2011

2. Law, 6. Trial

Three rules: Tell the truth; don’t tangle with the DA as he questions you; and look at the jury when you speak.

When you’re on the stand, you are under oath.  Lying under oath is a felony.  Felonies are bad.  There is no shame in not knowing the answer to a question.  If the truth is that you don’t know, then say it.  Don’t make something up because you want to avoid looking less than omnipotent.

Make sure you understand the question.  It’s OK to pause for a moment to absorb the question before opening your mouth.  Your attorney wants you to pause briefly anyway – that gives her the opportunity to object to a question before you answer it.  The judge can tell a jury all day long to ignore an answer, but you can’t un-ring a bell – if the jury heard it, they heard it.  If you don’t understand a question, ask for counsel to rephrase it.  This should never be an issue on direct examination.

Let’s address that phrase.  When your side is questioning you, that’s “direct examination.”  When the other side is questioning you, that’s “cross examination.”

In direct, you’re my witness.  We’ve gone over your testimony.  You know the issues we are going to discuss.  I know the answers you are going to give.  Depending on how central you are to the case, you may even know my exact questions.  But also be aware that as other witnesses came before you and as I watch the jury, that I may change my questions.  Your rule is simple – just tell the truth.

Direct examination inquiries are open ended.  “Tell me what you saw.”  Cross examination questions are closed – the answer almost always is yes or no.  Sure, a good cross will cherry pick issues.  You might feel like it is unfair.  So be sure to have a way to alert your attorney that a question/response on cross needs to be addressed in re-direct.  When the DA is done with you, your attorney can ask more questions.  Since you’re talking to the jury, don’t have an alert system that requires you to look at your attorney – that makes you look desperate.  Put your hand on the rail, shift in your seat, or push your hair behind your ear – anything that appears normal to an observer.  And have more than one thing to do.  If the DA picks up on you scratching the side of your face every time he scores, he’ll toy with you to the point that it makes you look like you have a skin disease or an unfortunate facial tic.

Don’t tangle with the DA.  No matter what your opinion of the person, they’ve been questioning witnesses a lot longer than you’ve been on the witness stand.  Personally, I love it when a witness gets hostile towards me or thinks he can make himself seem smart and me dumb.  By the time I’m done, the jury thinks I’m the most reasonable person on Earth and that you’re just a disgruntled a-hole.  Once I find your button – or you show it to me – I’ll push it like its got a morphine drip on the other side.  DAs are no different – they’re professionals playing in their home court.  Remember that.

It doesn’t matter how badly the DA makes you look on cross.  It is your attorney’s job to rehabilitate you.  Relax.

The audience in a trial is the jury (or the judge in a bench trial).  Look at them when you speak.  Sure, you can look at the questioner – but then make it a three-way conversation.  If a prosecution witness is just looking at me as I cross, then at the DA when I score a point, then back at me – what’s the jury seeing?  A deer in the headlights.  A witness without conviction in the content of her testimony.  What’s that lead to?  Repeat after me:  “Reasonable doubt.”

Trials are theater.  They are not some great quest for truth and justice.  Your job is to avoid getting caught up in the fake drama – just tell the truth, the whole truth, and nothing but the truth.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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