Introduction to Courtroom Testimony
Michael O. Hawkins, J.D.
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
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.
- A pause provides the opposing
attorney the opportunity to object to the question;
- It gives you time to make
sure that you understand the question. If you do not understand it, ask for clarification
saying that you do not understand the question;
- It provides you with the opportunity
to consider your answer and to be sure that it properly responds to the question you were asked;
- A pause allows you to control
the tempo of the questioning and stops a lawyer from firing rapidly paced questions at you which can cause confusion.
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
Michael O. Hawkins is an experienced trial attorney having practiced law for fifteen years prior to becoming an Agent
for the Naval Investigative Service (NIS). With NIS he conducted felony level criminal investigations and counter-espionage
investigations in Charleston, S.C., Camp
LeJeune, N.C., Rota, Spain,
Naples and La Madellana, Italy,
Keflavik, Iceland and in Panama. He then went to the Federal Law Enforcement
Training Center (FLETC) as a
Senior Instructor in the Legal Division and soon became responsible for running that division and then the Behavioral Science
Division. He also served as an Adjunct Instructor at the International Law Enforcement
Academy (ILEA) in Budapest, Hungry training mid and upper level law enforcement from the former Soviet Block countries. Mr. Hawkins is currently a licensed private investigator in the State of Washington
where he operates The Hawkins Group conducting both criminal and civil investigative services for attorneys. ©