Being a Witness

Q.: What is a witness?

A.: In almost all litigation, whether civil or criminal, persons other than parties to the lawsuit are called upon to testify by one of the parties in the case. These persons are called witnesses. Of course, parties in the case also may testify on their own behalf, and, in that respect, they are witnesses, too. After swearing or affirming that they will tell the truth, witnesses testify to what they know about facts relating to lawsuits between parties. Those who have specific expertise also may be called as witnesses to give expert opinions about the issues involved in a lawsuit. Whether a witness testifies in open court or prior to the trial (for example, in a deposition), every party to the lawsuit must have the opportunity to question all witnesses to bring forth everything that might be favorable to the party's position.

Q.: Can I be forced to be a witness?

A.: Every citizen has an obligation to give testimony when it is needed, whether convenient or not. Witnesses can volunteer to testify or they can be ordered to testify through what is known as a "subpoena." Since a party to a lawsuit usually must rely on other individuals to testify to what they know, it is very important for witnesses to testify when they are called. A witness who does not honor a properly issued and served subpoena may be held in contempt of court, an offense punishable by a fine, imprisonment, or both.

Q.: What is a deposition?

A.: In some cases, one of the parties to the lawsuit may want to obtain a witness's testimony before trial. The taking and recording of testimony prior to the actual trial is called a "deposition." A deposition may be taken by the party calling the witness or it may be taken by the opposing party to discover what the witness knows about the subject of the lawsuit.

Q.: What are rules of evidence?

A.: The rules of evidence have been developed over many years to control all courtroom proceedings. The rules ensure that credible evidence is presented and unnecessary or unreliable evidence is kept out of the courtroom. For example, the "hearsay rule" prevents a witness from relating second-hand information. Second-hand or "hearsay" evidence is not accepted because it is not thought to be reliable and because it would be unfair if an opposing attorney could not directly question the person alleged to have made the statement.

From time to time, an attorney in a case may object to a particular question asked of a witness. If the judge overrules the objection, the witness must answer the question. If the judge sustains the objection, the witness will not be permitted to answer. When an attorney objects to a question, the witness should wait for the judge's ruling before answering the question. During a deposition, the witness will usually be required to answer the question even after an objection is made by one of the attorneys, because there is no judge present at a deposition to rule on a possible objection.

Q.: How are witnesses questioned?

A.: Since the main purpose of a trial is to learn the truth, both sides in a lawsuit must have a chance to question witnesses. This is done through what is known as "direct examination" and "cross-examination."

The lawyer who calls a witness to testify will ask questions to bring out the facts (direct examination). Then, the opposing lawyer will be allowed to ask questions (cross-examination). The questions of both lawyers should serve one purpose:  to bring out the facts known by the witness.

Although witnesses are sometimes concerned about being cross-examined, they need not fear this process. The opposing lawyer is responsible for testing a witness's memory and determining how it compares with the memories of others. It is natural for several persons to see and remember an event somewhat differently. A witness may remember some facts and forget others. A witness is expected to testify from memory as accurately as possible—no more and no less.

Q.: What are my rights as a witness?

A.: If you are serving as a witness, you probably will not have your own attorney present when you testify. Whenever you are testifying, whether during a pretrial deposition or a trial, if you feel that particular questions may tend to involve you in the lawsuit, you should exercise your right to speak with your own attorney before answering. If the answer to a particular question would tend to incriminate you, that is, implicate you in the commission of a crime, you have a constitutional right to refuse to answer and should consult with your attorney before responding. Otherwise, you must respond to all questions truthfully, even if you must answer, "I don't know" or "I don't remember."

Q.: Should I discuss my testimony in advance?

A.: Usually, lawyers for both parties will want to discuss the case with you before trial. It is not at all improper for a lawyer to review your testimony ahead of time. In fact, it is the lawyer's professional responsibility to find out in advance what you know about the case. You are not obligated to discuss the case with any lawyer, but you may find it helpful to find out from a lawyer exactly what questions will be asked of you and about proper courtroom procedure. You also have the right to speak with your own attorney before speaking with the attorney for either party in the lawsuit.

Tips for witnesses

Be truthful. You are under oath when you testify in court or in a deposition. Testifying falsely under oath can subject you to criminal penalties for perjury. Sometimes being truthful means saying, "I don't know" or "I don't remember." There is nothing wrong with these answers if they are truthful. Your truthfulness will help the judge or jury reach the right decision. If you do not know the answer or cannot remember, say so.

Never lose your temper! A witness who gets angry is at the mercy of the cross-examiner. An angry witness appears to be prejudiced, and is less likely to be believed by judges and juries. If you keep your temper, your service as a witness will be more pleasant, and your testimony will be more valuable.

Be attentive. You must be alert when you are in the witness chair so that you can hear, understand and give an intelligent answer to every question. If the judge and/or members of the jury get the impression you are indifferent, they may not believe your story.

Think before you speak. Hasty and/or thoughtless answers may be incorrect and may cause problems. This is particularly true when the opposing lawyer is cross-examining. The cross-examiner may ask you leading questions—questions that suggest only one answer. Make sure you understand the question; then answer it as accurately as you can. If you don't understand a question, ask that it be explained or rephrased.

Speak clearly. Nothing is more annoying to a court, jury and lawyers than a witness who does not speak clearly enough to be heard. An inaudible voice not only detracts from the value of your testimony, but it also tends to make the court and jury think that you are not certain of what you are saying. Everyone in the courtroom is entitled to know what you have to say, and the court reporter who is recording the proceedings must be able to hear all of your testimony. It is also important that all responses are verbal and clear, as head nods or grunts are difficult to record.

If you don't understand a question, ask that it be explained. Many times, a witness will not understand a question that has been asked, but will try to answer it anyway. This is confusing to the court, jury and lawyers, and it extends the time a witness will be testifying because the lawyers must go back and correct the misinformation.

Answer all questions directly! Too often, a witness will be so anxious to tell the story that he or she will want to get it all told in answer to the first question. Listen to the question. If you can answer it with a "yes" or "no," do so. Never volunteer information. The information that you volunteer may have no bearing on the case and may delay the proceedings.

Stick to the facts. Don't guess or speculate! You are allowed to testify only to what you know personally. What you know is important; your speculation or guessing is not.

Be helpful, not funny. A trial is an important matter to the parties involved. Their money, property or freedom may be jeopardized by your testimony. Don't try to be a comedian.

Be fair. Though you may be testifying for a friend whom you would like to see win, don't color your testimony or try to overdo it. You will serve best by making your testimony as objective as possible.

Q.: Why is being a witness so important?

A.: Your obligation to serve as a witness is just as essential to the equal administration of justice as your duty to serve as a juror. When called to be a witness, testify truthfully and fairly and leave with the satisfaction that you have helped to ensure that justice is done. Just remember, you may have a lawsuit or trial of your own someday and will need and want witnesses to testify for you in a fair and impartial way.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

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