(The following is provided for informational purposes, and is not intended to be legal advice.)
The year is 2007. I’m at the witness stand, right hand raised, swearing to tell the truth and spelling out my name. I’m testifying in court for the first time, and I’m a bundle of nerves. My breathing is shallow, my palms are moist, and I’m worried that the microphone is picking up the staccato bass drum playing in my chest.
And I’m not even that involved in this case. I’m not a plaintiff in a civil action fighting over big-time money. I’m not a criminal defendant facing a loss of liberty. I’m just a law clerk, here to answer some routine questions about whether there is a center median on a road in my hometown. (There is, for the record). But whatever your degree of involvement in the case, make no mistake: how you come across when you testify can influence a jury to return a verdict for you, or against you.
After reading this guide, you will know how to avoid the ‘unprepared witness’ pitfalls, you’ll be more confident on the witness stand, and the jury will believe your testimony to be the truth, the whole truth, and nothing but the truth.
PAY ATTENTION TO THE QUESTION
Unprepared witnesses are so anxious that they often anticipate the question based on the first few words that come out of the attorney’s mouth. Never anticipate the question. Don’t presume to know what information the attorney is trying to get out of you, because that’s not your job. Right now your job is to figure out what the question is asking. The court reporter takes down what the attorney just asked, and the other attorney decides whether or not to object. So you take your time, because there’s no rush. Accuracy is more important than speed.
ANSWER THE QUESTION YOU HAVE TO ANSWER, NOT THE ONE YOU WANT TO ANSWER
Cross-examination is the ultimate truth serum. If executed properly, cross-examination forces a witness into answering honestly, or lying obviously (from which the jury will infer the truth). Like quicksand, the more you struggle, the deeper the trouble.
Expect that at some point during cross-examination, you will feel a growing sense that the cross-examiner is driving at some uncomfortable truths. Answer honestly, and you cauterize the damage. On re-direct examination, you’re afforded an opportunity to repair some of the damage. And look at the silver lining: the jury believes you. But you get into deep trouble when you try to answer the question you want, instead of the one you have.
Below is an example of just such a situation. It is a snippet from OJ Simpson’s criminal murder trial. Defense attorney (and expert cross-examiner) F. Lee Bailey questions an experienced LAPD Sergeant. Bailey’s questions are driving at the proposition that the Sergeant destroyed evidence at the Brentwood crime scene. The Sergeant senses this, and struggles to avoid answering the questions he has to answer.
BAILEY: Experience would teach that anytime you walk upon the ground, you may affect what is there?
SERGEANT: No, not in this case, I was careful where I walked.
[The Sergeant answers “Were you careful where you walked?”]
BAILEY: You were careful where you walked?
BAILEY: Do you know what a footprint looks like?
BAILEY: You do. Can it be seen with the naked eye?
BAILEY: All footprints can be seen with the naked eye?
SERGEANT: Well if they’re a footprint… If they’re visible they can be.
BAILEY: Don’t you know that many footprints can’t be seen until they’re dusted with powder? Did you know that?
SERGEANT: No, I didn’t.
[Here the Sergeant lies, or at least states a falsehood. Of course he knows that some footprints can’t be seen unless they’re dusted. Any self-respecting CSI fan knows that.]
BAILEY: Don’t you know that some footprints can’t be seen unless they’re shown with an oblique light?
SERGEANT: I suppose that’s possible.
BAILEY: Have you ever heard that, in your training and the 300 homicide scenes you’ve been at?
[The Sergeant is forced into a corner: either admit the uncomfortable truth, or lie obviously.]
Mr. Sullivan is a trial attorney offering statewide services.