How to be a good witness – 17 tips before you testify
Testifying for the defense in Court in Phoenix, Arizona
Being a defense witness in a criminal case is, without a doubt, one of the least attractive roles one may play in a criminal case, that is because if a defendant is found guilty of a felony offense, they may face harsh repercussions. Who wants that riding on their shoulders?
The flip side of that is that you may be the hero of the story. It may be your testimony that keeps the defendant out of prison. Sometimes, witness testimony is the only evidence to exonerate a criminal defendant.
When so much is on the line, you need to be adequately prepared to testify by an experienced criminal defense attorney to ensure the best outcome. A criminal lawyer will tell you what to expect in court, how to dress, and how to speak (but not what to say).
Over the past three decades, Phoenix criminal defense attorney, Howard Snader, has compiled 17 tips for witnesses in a criminal case. This article will take you through each of those tips and offer some additional information on preparing to testify in court.
This video takes a deeper dive into testifying in court, so be sure to watch it to prepare or ask the people who will testify on your behalf to watch it. At the bottom of this article, Howard included a downloadable version of the tips for witnesses that you and your witnesses can review before testifying.
When & Where can I use these tips for witnesses?
In general, these tips are good to use anytime and anywhere that you need to make an official statement, being interviewed by any investigator (police officer, insurance adjuster, etc.), at a deposition in a civil or family law case, or testifying in court under oath. These are good general guidelines to follow no matter the circumstances.
Honesty is the best policy; guessing is not honesty
All the witness tips I discuss are important, but honesty and sincerity are possibly the most important. When asked a question, unless your attorney objects, you need to answer it fully and honestly. Holding back the truth, telling half-truths, or outright lying is not a good idea, and it is not helpful. Judges and juries can usually tell when a witness is less than truthful, and that will erode your credibility. If that happens, the value of you as a witness is gone. Worse yet, if you are caught in a lie, you may be creating legal problems for yourself. So, no half-truths!
However, don’t guess the answer, even when asked to do so. In most cases, you cannot be made to guess or speculate. Guessing or speculating as a witness will typically do more harm than good. The opposing attorney often knows that you do not know the answer, but maybe trying to lead to guess the answer that they want to hear. If you do not know for a fact that the answer you are giving is true, the best response is, “I don’t know.”
The same is true if you cannot remember something you have been asked to confirm as true or factual. If you don’t recall, the best response is, “I don’t remember.” Do not inject vague, cloudy, or made-up facts into a partial memory to fill in the blanks or satisfy the narrative.
How will I be notified to testify?
Typically, if you are going to testify under oath, you will receive a subpoena or deposition notice. Your attorney may also notify you. In any event, you should receive a letter or document that tells when, where, and how to appear to testify or be interviewed. You may be notified by personal service, mail, telephone, or even email. How you are notified depends mainly on the type of proceeding and what the law requires. But, if you are aware of a proceeding where you may be called to testify, and you have not received notification at least ten days in advance, you should contact your lawyer or the person/court conducting it.
Where will I be testifying?
There are many possible answers to this question. In this day and age, you may not need to go anywhere. Instead, you may be able to testify by video conference using Zoom or another video conference software. If that is the case, you will receive a link, usually by email, along with instructions on how to set it up, how to test it and when/how to log in. If you do not receive the instructions or have problems accessing the conference, contact your attorney or court or the person responsible for the meeting.
If the subpoena or notice is for you to appear in person, the notice will have its date, time, and place. It could be at an office building, courthouse, or another facility.
If you have never been there before, it is a good idea to find it on a map so that you have a general idea of where you are going. You should be there one hour ahead of the start time so that you can find a place to park and make it through any building security that may exist.
It is also good to contact your attorney when you receive the notification; they may not have received notice. You should also contact your attorney if you cannot attend at the scheduled time for any reason. In some cases, it may be possible to reschedule your testimony.
TIPS FOR WITNESSES
Always be truthful.
Consider your words before speaking. Exaggeration may jeopardize your testimony in these hearings.
Properly present yourself for a court appearance.
Please dress business casually or as you would at church. This adds to your credibility. Please refrain from wearing jeans, t-shirts, or shorts. Dresses should be modest in length and not too fitted. If in doubt, consult your attorney before wearing anything to court.
Cover tattoos with proper attire wherever feasible. Even a beautiful tattoo may be deemed offensive by the court or juries. As a general guideline, avoid giving people an additional reason to assess you as excellent or terrible.
Please refrain from wearing anything bright or flashy. As with tattoos, excessive jewelry may lead to prejudiced conclusions about you by the court or jury. Less is more. Small, charming, and traditional; that’s how we need to present ourselves.
Before you begin answering any questions, take a deep breath to relax. Avoid distracting behaviors throughout your testimony. While testifying, refrain from chewing gum.
Speak clearly and loudly.
Just answer the question that has been asked. Make no voluntary disclosures or more information. Provide a precise response to a specific inquiry. Complete your sentences.
Respond only to questions you understand.
You have the option of having the question repeated or rephrased. If the attorney wrongly repeats your response, correct it immediately.
Avoid anticipating a question.
Allow the attorney to complete the inquiry before responding. Wherever applicable, just respond with a yes or no.
If you are asked a difficult question with several components, it is acceptable to request that the attorney rephrase it.
Additionally, it is acceptable to respond, “To address the first portion of your question,”
Avoid inferring conclusions from a collection of information.
You are not required to express an opinion or draw conclusions about facts unless specifically requested.
Only you are aware of what you saw and heard.
Make no guesses. Provide as much detail or as little as your memory permits. Unless specifically requested, do not explain your responses. Indicate if you are quoting or paraphrasing anything you heard.
Immediately cease speaking if the court or counsel object.
The court will choose whether you should respond to the inquiry.
Regardless of how disrespectful the opposing attorney seems or how upset they make you, refrain from arguing with them.
Exude confidence and vigilance.
Remember to avoid smiling or acting unhappy as you approach the witness stand. While speaking, maintain eye contact with the jurors. Rather than attempting to remember your testimony, just recount what occurred in your own words.
Respond succinctly and directly.
Avoid using the phrases “I believe” or “I think.” These expressions communicate to the judge and jury your lack of confidence and apprehension over your testimony. Avoid using absolutes such as “Always” or “Never” in your responses and be cautious of inquiries that include such phrases.
Avoid being amusing or joking in court.
However, if something is amusing, it is acceptable to laugh or express the right emotion in front of others. Even though you are testifying on the witness stand, you are still human.
Occasionally, the prosecuting lawyer may inquire whether you have shared the facts of the case with anybody.
You must be honest. You should not be hesitant to state in court that you discussed the matter with the police, your attorney, your family, and your friends. It is acceptable to say whether you spoke with the prosecution or defense counsel about the matter. If you discuss the case but do not disclose it, your testimony may be tainted. If the other attorney inquiries about who you talked with on the matter, it is OK to disclose who you spoke with.
It is OK to feel anxious. Prepare yourself and examine any reports or notes you have created. Consult defense lawyers about your testimony. Additionally, please bear the preceding guidelines in mind before testifying.
Consult a Phoenix defense attorney today!
Your testimony may be critical; it may very well be the deciding factor in determining whether an accused person is convicted.
Our top criminal defense attorneys will help you and your witnesses prepare for trial, gather all of the available evidence and formulate a defense strategy to help preserve your freedom. Call us today. We are here to help!