Following are some general instructions for testifying as a witness in court or in a deposition. The most important witness instruction is to tell the truth.
There are two ways to tell the truth. One is a halting, stumbling, hesitant manner which makes the jury or judge doubt you are telling all of the facts in a truthful way. The other is in a confident, straight-forward manner which makes the jury or judge have more faith in what you are saying.
Before you testify, if you can, visit the court room and sit in the witness chair. You can visualize the actual experience and it may help make you be more comfortable when you take the stand.
Wear clean, neat clothing to court. Dress professionally and conservatively.
Don’t chew gum while testifying.
While taking the oath, pay attention and say “I do” clearly.
Don’t memorize what you will say. You can practice saying truthful things….even in front of a mirror. It can help to say the actual words but do not memorize.
Be serious. Avoid laughing or talking about the case in the halls, restrooms, or any place in the courthouse.
Speak to the members of the jury and to the judge directly. You can look directly at them from time to time. Speak to them as frankly and openly as you would speak to a friend or neighbor.
Do not cover your mouth with your hand. Speak clearly and loudly enough so the farthest juror can hear you easily.
Listen carefully to the questions asked of you. No matter how “nice” the attorney may seem on cross-examination, he/she may try to damage you as a witness.
Understand the question before you answer it. Have it repeated if necessary and then give a thoughtful, considered answer. Do not give a snap answer without thinking about the question. You cannot be rushed into answering, although it could look questionable for you to take so much time on each question that someone would think you were making up an answer.
Explain your answer to a question I may ask on my direct examination of you. It may be better than a simple “yes” or “no”. In responding to a question on direct exam, you can add a fact in your response to the question. This helps flesh out your answer and gives you an opportunity to explain. Give the answer in your own words. If a question can’t be answered truthfully with a yes or no, you have a right to explain.
In responding to questions on cross examination, the approach is slightly different. Do not add things unnecessarily. Answer directly and simply the question asked of you and then stop. Do not volunteer information not asked for.
If your answer was wrong or incomplete on your reconsideration, correct your answer immediately.
If your answer was not clear, clarify it.
The court and the jury want facts. If you give an opinion or a recommendation, they will want the facts you relied on in coming to your conclusion. The facts and your observations, are often more persuasive than your summary conclusion or opinion.
What is Hearsay?
Hearsay. Often witnesses cannot testify about what someone else told them if they are offering this to proof of the matter asserted. This is called hearsay. There are occasions when witnesses can give an opinion. Experts can give opinions. You can, however, testify to what the other party in the case said.
Always be polite, even to the other attorney. Never be a sarcastic. That can lose the respect of the judge and the jury.
Do not exaggerate.
Stop instantly when there is an objection to a question or when the judge is speaking. Do not attempt to sneak your answers in. If an objection is “overruled”, you can answer the question. If an objection is “sustained”, you cannot answer the question and the lawyers will move on to the next question.
Do not appear nervous if you can avoid this. People are, however, often nervous on the witness stand. Avoid mannerisms which will make the jury think you are afraid of or not telling the truth.
Testifying for a length of time is tiring. It causes fatigue. You will recognize fatigue by certain symptoms; anger, tiredness, crossness, nervousness, careless answers, willingness to say anything or answer any question in order to leave the witness stand. When you feel these symptoms, recognize them and strive to overcome the fatigue. Remember, some attorneys on cross-examination may try to wear you out so you will lose your temper and say things that are not correct, or that will hurt your testimony. Do not let this happen to you.
Do not look at your attorney or at the judge for help in answering a question. You are on your own. If the question is improper, your attorney will object. If the judge then says to answer a question, do so.
Do not “hedge” or argue with the other attorney.
When you leave the witness stand, wear a confident expression, not a downcast look.
If you are not a party, be as objective as possible and do not appear to take sides.
Several questions are known as “trick questions”. If you answer them the way the other attorney hopes you will, it can make your answer sound not believable to the jury. Here are some common questions:
“Have you talked to anyone about this case?” If you say “No”, the jury or judge knows that you are not telling the truth because good attorneys will always talk to witnesses before they testify. If you say “Yes”, the other attorney may try to infer that you were told what to say. The best thing to do is to say frankly is the truth—that you have talked to whomever you have – lawyer, defendant, police, etc. – and, if the lawyer, that you were asked to tell the truth….which you are.