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Statements by a witness in a legal proceeding are known as
"testimony," and are brought about by answering the questions of an attorney.
Questions asked by one's own attorney are known as "direct examination" and
questions asked by the opposing attorney are known as "cross examination."
Whether the testimony
is in a deposition, at an administrative hearing, or in a trial, your knowledge
as a witness is best expressed when these guidelines are kept in mind.
Tell The Truth
Answer The Question, No More
Use Plain English
Do Not Memorize
Do Not Guess
Create A Good Impression
This advice may seem obvious. However, individuals
involved in legal proceedings often become emotionally involved in the outcome
of the dispute. The temptation to incorrectly embellish or falsely exaggerate,
especially small details, arises. This must be avoided. Every witness takes an
oath to testify truthfully.
Strange as it sounds, this is often a difficult rule to
follow, since there is a temptation by a witness to explain all that is related
to the subject of the questions. Try not to feel uncomfortable about this.
Additional information can be brought out with additional questions. Parties to
a lawsuit often provide a basis for cross examination with a statement that was
needlessly made while answering a question during direct examination. Thus, a
question that asks "Did you see anyone arrive at the scene of the accident,"
should be responded with a "Yes," "No" or "I do not recall." By answering that
question with the names of the persons who arrived at the scene of the accident
(for example), a witness is providing information that was not requested.
The most effective witnesses testify in language that they
normally use and find most comfortable. Jurors are accustomed to hearing and
understanding conversational language. The testimony of a witness who uses
language that is unnatural may be confusing and may lack credibility. Therefore,
a witness who is comfortable with the words "He got out of the car" should say
that, and not say "He emerged from the vehicle." In other words, be yourself.
Just as a witness should use familiar language, a witness
should respond to questions in a natural, relatively spontaneous manner.
Memorized testimony will appear artificial and will lack credibility. Moreover,
witnesses will likely forget their "script," and thereupon become confused and
disoriented. Of course, a witness should be prepared, in a general way, for the
questions to be asked and the answers to be given.
In almost all circumstances, witnesses are only asked to
testify as to information about which they have personal knowledge. Thus,
witnesses should not guess at the answer. If the witness does not know the
answer, there is nothing wrong with stating "I don't know" or "I don't
remember," rather than guessing at the answer. It is a good idea for the witness
to pause for a moment before answering so as to absorb the question and think
about the answer.
In addition, a rule widely followed in courts, known as
the "hearsay" rule, prohibits a witness from testifying as to what someone else
told them or what they heard outside the court, in order to prove the subject of
the statement. Therefore, if you were asked the question "Did the driver get out
of the car?" it would be incorrect to answer yes or no unless you personally
observed the driver and the car. Simply because you may have been told by
another person that the driver got out of the car, that information does not
give you personal knowledge of that fact.
Finally, a witness cannot answer a question that is not
understood. If a question is unclear, the witness should ask that it be repeated
or rephrased, rather than guessing at what the question may be.
First impressions are often lasting impressions, and an
impressive witness should bear certain tips in mind:
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Do not
argue with the lawyer asking the questions. Do not say "You asked that
question already." Even if the witness thinks the question is repetitious, the
witness should courteously answer it again.
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Do not
try to outwit the lawyer or answer sarcastically.
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Dress
appropriately. A witness should be carefully groomed, and should dress
conservatively considering their age and background.
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It is
natural for a witness to be nervous. This anxiety can be reduced by preparing
for the testimony, such as visiting the courtroom in advance to become
familiar with the surroundings, and reviewing the expected questions and the
information to be provided in the answers. Mostly, nervousness can be reduced
if the witness remembers that the judge and jury are ordinary people who
understand the witness's anxiety. A witness should try to relax as much as
possible and be as natural as possible.
There is no such thing as a perfect witness. By following
these guidelines, however, the
testimony to be offered may be delivered in a natural, understandable and
credible way.
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