A Brief Primer on How to Testify Effectively
Introduction to Courtroom Testimony
By: Michael O. Hawkins, J.D.
The Hawking Group
For most people, the idea of being called upon to testify in either a criminal or civil trial can be a very stressful thought. A courtroom is a very intimidating place with the Judge, jury, and opposing counsel all listening to everything that is said. The purpose of this article is to help de-mystify the process and to provide you with tips that will help you be a more effective witness.
A trial has two sides, each of which is working very diligently to prevail. In a civil case there is the Plaintiff who is the one bringing the case and who must prove his case by “the preponderance of the evidence”. That means that his proof must support a finding in his favor that he is more likely to be right. If one had to give a percentage to his evidence, it would have to be found that it is more than 50% likely that his side is correct. The other side is the Defendant’s who is the one defending the claim or allegation by the Plaintiff. The Defendant needs to prove, or show, by the preponderance of the evidence that the Plaintiff’s claim is incorrect. For example, in an automobile accident case where the Defendant was sued for damages as a result of the accident, the Plaintiff must carry the burden of proof showing that the Defendant’s action was responsible for the accident. On the other hand, the Defendant needs to show that he was not responsible for it.
In a criminal case, the Plaintiff is the governmental entity making the charge. In most cases, that entity is the State or Federal government. The Defendant is the individual who is charged with committing a specific crime or set of crimes. In criminal cases, the Prosecutor representing the government must prove the case against the Defendant beyond “a reasonable doubt”. This means that should there be a doubt that a “reasonable person” would have that the Defendant did not, or may not, commit the crime, then the Defendant cannot be found guilty. This is a much higher and more strict standard of proof than exists in civil trials.
The Judge in a trial utilizing a jury, serves much as a referee would act in a football game. His role is to make sure that the trial is fair, that the rules of evidence are followed, and makes decisions as to “matters of law”. A Judge sitting on a case without a jury must also serve as the “finder of fact”.
A jury’s role is to listen to all of the evidence presented during the trial and to make a finding as to what actually happened. They are then charged with taking the applicable law or laws provided to them by the Judge and applying them to the facts in order to make their determination as to which party wins the trial.
The attorneys in the case represent one side of the case or the other and are responsible for presenting the evidence and to help guide the jury in determining the case in such a manner that it will benefit their client.
The first and primary rule of being a good and effective witness is to tell the truth, do not embellish, shade or otherwise slant your testimony to aid either side of the trial. You are not expected to know everything and there is nothing wrong with an honest, “I don’t know”. Only testify as to something that you know and do not guess.
Pause before you answer any question, no matter how simple it may be or how sure you are of the answer. By pausing you are accomplishing several things that are important to you and to the trial.
Limit your answers to the questions that are asked. Do not go off on tangents or explanations of why you answered the way that you did. If you are a witness called on behalf of the Defendant, when you are being questioned by the Plaintiff/Prosecutor, keep your answers as short, concise and as brief as is possible. When asked questions by the Defendant’s attorney, you may be more verbal and expand on your answers.
Do not think that you can out smart the attorney and tailor your responses in an attempt to guide him in another direction or to make you look better. It will not work and you will be made to look either unsure or as if you are lying.
Always remember that the attorneys are not the ones who make the decisions in the case. This means that when answering a question you should address the finder of fact, which in most cases will be the jury itself. It is the jury that will weigh your testimony and your credibility.
If you are nervous, which is very common, look at the jury one person at a time. Make eye contact with each of them and speak as if you are addressing only one of them. It is far easier to talk to one person than to a group, so you pretend that you are only talking to one juror at a time. By doing so, you are fooling yourself into being more relaxed and at ease while on the stand.
Do not argue with the attorney, stick to what you know the facts to be and just state them clearly. Do not allow the attorney to make you angry or upset as that can cause you to make statements that you do not mean and which can ruin your credibility with the jury.
How we look is often as important as what we say. It is human nature to pre-judge individuals based upon how they dress, move, act and talk which can have a very strong effect on whether or not we trust them. As a witness, it is important that you present yourself to the jury in a positive light so that they will like you and be more likely to trust what you have to say.
Dress appropriately for the trial. A trial is a very solemn proceeding and what you choose to wear must fit into that type of environment. It does not matter how you dress in your everyday life, it only matters how you dress for your courtroom appearance. If you think of a trial as theater, you can understand that actors always “dress the part”, and your role as a witness is no different. You want to dress in a manner that tells those looking at you that you are honest, trustworthy and that they should give great weight to what you have to say.
This means that you have to indicate by your attire that you take your testimony very seriously. This means that your style of dress should be conservative in nature. For men, at a minimum you should wear a neck tie that is subdued and not loud or flashy. Shoes should be freshly shined, hair trimmed and neat and no visible tattoos or body jewelry. Women should avoid wearing low cut or revealing clothing as well as excessive jewelry.
While on the witness stand, sit with good posture keeping both feet on the floor. Rest your hands in your lap which prevents you from fidgeting with them in a manner visible to the jury.
When taking the stand and when leaving it, do not show emotion toward one side or the other as that detracts from your credibility. Obviously, if your spouse is the Defendant you will have a bias and will be expected to show some concern, but attempt to minimize it in your actions. Do not exchange “high 5’s” with the Defendant after you have testified as it will cause the jury to discount what you had to say while on the stand.
Finally, always keep in mind that your testimony is very important. If it were not important, you would not have been called as a witness. Testify only to those things that you actually know without guesses or suppositions. Only tell the truth. If you lie, guess or embellish you will be caught and the value of your testimony will be destroyed. In addition if you lie, you may also be charged with committing the crime of perjury which could result in your next court appearance being that of a defendant.
Michael O. Hawkins is an experienced trial attorney having practiced law for fifteen years prior to becoming an Agent
for the Naval Investigative Service (