Nervous about court? Not many people like to testify under oath. Scary, intimidating, emotional are how some describe court. Others may also describe it is liberating (believing that “the truth shall set you free”). Some people get enjoyment or feel it is a civic duty to tell on other people. Their are also expert witnesses that are sometimes paid to offer an opinion in a trial. There are many different ways and motivations for how someone becomes a witness to a case. Regardless of the means that someone becomes a witness, knowing what to expect and how to handle the experience is critical.
- Lawyer up! Everyone has a constitutional right to retain legal representation in court. It does not matter if you are just a witness to an alleged crime or a particular circumstance – you can hire a lawyer to help you. There are several advantages to having your own legal representation. First, you are able to have someone to consult with about your anticipated testimony. Second, your lawyer can help you assert any privileges that you may have (5th Amendment privilege against self incrimination, spousal privilege, etc.) when applicable. Third, when you are represented by counsel, the Prosecution and Defense counsel are supposed to go through your lawyer in an effort to question you. Hence, having a lawyer is like having a buffer from other lawyers. Fourth, it is difficult to be in court alone. Having a lawyer can help with the stress and emotional strain of having to appear in court and testify. Fifth, the lawyer can help assert your position about a case, when appropriate. For example, in many cases the Court will order no contact between the Defendant and his spouse when the Defendant is charged with domestic violence against his spouse. Sometimes domestic violence cases are blown out of proportion, and the lack of contact causes a hardship. Having a lawyer may help convince the Court that the removal of the no contact provision is appropriate and necessary under the circumstances. Sixth, having a lawyer can help prepare you for what you might be asked in Court. Seventh, when appropriate a lawyer acting on behalf of a witness can try and negotiate with the Prosecution about the witness’s immunity from criminal prosecution.
- Listen to your lawyer. When your lawyer gives advice, it is probably for good reason. Your lawyer more than likely has the educational background and courtroom experience needed to offer sound legal advice and to develop a strategy in connection with a case. Persons who don’t listen to their lawyer often act at their own peril. For Defendant’s, even though they have the absolute right to testify or remain silent, they should consider the advice and strategy of their lawyer in making their decision to testify or elect not to testify. Witnesses, when properly subpoenaed, have no choice in the matter unless there is a privilege that can be asserted. Properly subpoenaed witnesses must appear at court when subpoenaed and testify under oath when called. It is important for a witness to realize that a prosecutor is not their lawyer; the prosecution represents the government and not any particular citizen. Also, the only person who a defense lawyer represents is their client. The defense lawyer is loyal to their client only, and is generally unable to represent witnesses due to a conflict of interest.
- No Pissing Contests, please! Prosecutor’s and Defense lawyers are trained in the art of direct and cross examination. Part of the job of a lawyer is to try and expose weaknesses, inconsistencies, and biases in a witness’s testimony. It is natural for a witness to become defensive. No one likes being attacked. It rarely does any good for a witness to argue with the lawyers or otherwise lose composure. Losing composure is a sure fire way of saying things that you do not mean, which is often a source of inconsistency. Do not take what a lawyer says personally – they are only doing their job. A pissing contest with a lawyer is just falling for the bait that the lawyer laid out for you. Keeping your composure is key.
- Listen to the Question. Sounds simple enough right? It is important that the witness listens and understands the question before he or she answers it. If the question is confusing or misleading, the witness can always ask the lawyer to rephrase the question. During cross examination, a lawyer will almost always ask leading questions. Leading questions are questions that suggest an answer. Be careful that you are not lead into answering a question in a harmful, untruthful way because you were not paying attention to the question that was asked.
- Answer Only What You Are Asked. Focus is key when testifying. Just about all witnesses are nervous when they testify. They are nervous for many different reasons. One source of nervousness is that a witness is afraid that he or she will not be able to fully tell their side of the story. When a witness answers more than what they are asked it often makes the witness seem evasive. When a witness is evasive one interpretation may be that he or she is not being completely truthful. It is important to remember that each side of the case has a lawyer that will have the ability to ask questions. Be patient. The fact you may wish to testify about may be covered by the second lawyer who questions you. Also, there are strategic reasons why a lawyer may avoid asking questions concerning a certain topic or detail. Providing a detail that is not asked for may undermine one side or the other. Sometimes a Judge will make an evidentiary ruling that the lawyers cannot ask questions about a topic or detail. Sometimes the topic or detail is not relevant to the case. Again, you should listen to the question AND answer only what you are asked.
- Don’t Guess or Speculate Just to Give an Answer. It is alright if you do not know the answer to every question. There are many reasons why you might not know the answer. Perhaps the question pertains to something you didn’t see or observe? Maybe you just don’t remember for one reason or another. It is human to not remember every detail over time. People also see and hear things differently. Guessing or speculating opens a witness up to possible impeachment of their testimony. If it is determined that a witness is guessing about one answer, it may erode the credibility of other answers given.
- Being Truthfully Consistent is Key. Witnesses are duty bound by oath to be truthful. The legal system is compromised when people come to Court and lie. The truth is perceived by many Judges and jurors as something that is consistent. When inconsistency is brought into the equation it causes Judges and jurors to question the overall credibility of the witness. Judges and jurors question the integrity of the testimony of a witness that seemingly tries to outsmart the lawyers involved.
- Dress for Success. The way you dress often sends a message about you. If you dress in a way that is disrespectful or provocative, it may undermine your credibility. People who dress in a confident manner may feel more confident when they testify. When you testify in Court all eyes are on you. Judges and jurors will scrutinize your appearance as they listen to your testimony, and will make judgments not only on what you say but also upon how you look.
- Be Prepared. In Michigan, there is nothing wrong with a witness reviewing his or her prior testimony or prior statements. One of the reasons for transcripts and written/recorded statements is to refresh the witness’s memory about a particular event or detail. As stated earlier, it is only human that our memory deteriorates over time, and in Michigan refreshing our memory is proper. A witness’s familiarity with what they may be asked may reduce anxiety and nervousness. Also, part of being prepared is being well rested. Make sure you get a good night sleep before you testify. A witness that is not well rested may lose their focus. Finally, if you have a lawyer, ask your lawyer what to expect before testifying.
- Remember – There is No Such Thing as Perfect Testimony. Do not beat yourself up over your testimony. If you testify with a worry as to whether you will say the right things, it may affect your overall performance as a witness. It is normal for a witness to have strengths and weaknesses to their testimony. It is ultimately the role of the Jury (or Judge if the Defendant has a bench trial) to determine the credibility of witnesses. Michigan Criminal Jury Instruction 3.6 instructs a jury that they are free to believe all, none, or any part of a witness’s testimony. A juror or Judge does not ignore their common sense and life experiences when making a decision. In most trials the witnesses are sequestered (prevented from hearing the testimony of other witnesses). Jurors in their deliberations compare what different witnesses say against each other and the exhibits introduced. They recognize that a witness might testify truthfully but simply are mistaken in their thoughts or memories of an event or detail. Jurors consider a lot of different factors about a witness, including: their ability to see or hear what happened; their memory; how they looked and acted in Court; their age; their maturity; promises made to them; biases or prejudices; threats; reasons for the witness to be truthful; reasons for the witness to lie; all the evidence in the case.
Do you need someone who is in your corner, and who has your back? There is no substitute to having an experienced criminal lawyer. Make the smart choice and contact attorney Daniel Hilf of Hilf & Hilf, PLC. His office telephone number is (248)792-2590.