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How to be a great witness
By Jeffrey W. Jensen
The prospect of testifying in court as a witness is a daunting one- even for seasoned trial lawyers. It is an uncomfortable feeling knowing that, however truthful your testimony may be, there will be a lawyer on the other side asking you questions on cross-examination intended to make it appear that you do not know what you are talking about- or worse, that you are lying. Over the course of, perhaps, five hundred criminal jury trials I have examined, and cross-examined, thousands of witnesses. Having done that one cannot help but learn what makes a good witness and what makes a bad witness.
I have distilled this experience to four simple rules that anyone can follow. If you follow these rules while testifying you be a great witness and, for all intents and purposes, you will be "cross-examination proof."
1. Tell the truth. It may obvious that, while testifying in court under oath, one should tell the truth. However, there are many ways one may fail to tell the truth without making up a complete cock-and-bull story. For example, exaggeration is one way to fail to tell the truth. Claiming not to remember something that we all know you should remember is another example. Offering good faith speculation as to what the truth might be, even though you do not know for sure, is probably the most common example. Each of these examples sets you up to look like a fool on cross-examination and must be scrupulously avoided. Do not attempt to make your testimony more compelling by exaggerating. Do not attempt to be "helpful" to the attorney calling you as a witness by forgetting the bad facts or, where you really do not remember the answer, by guessing what the answer should be.
2. Listen to the question and answer only the question. Whenever I see a trial on television or in the movies the witnesses tend to go off on an eloquent speech that moves the jury to tears. This is fiction. This is fiction. And, I repeat, this is fiction. One witness will almost never win a case with their eloquence. On the other hand, I have seen cases lost with one verbose answer to a question. You must listen to the question and answer only the question. The lawyer has been through many trials and he is the expert. The lawyer has a theory of the case before he enters the courtroom and he will only present enough evidence to permit him to make the arguments he has developed. He controls the evidence by the questions he asks. In other other words, the questions are the steering wheel. If the witness does not answer the question then the witness now controls the evidence. You should no more wrest control of the evidence away from the trial lawyer than you should wrest the steering wheel away from an experienced airplane pilot in the middle of a thunderstorm.
3. Say it like you know it. Most people, other than lawyers, do not like to sound like know-it-alls in everyday conversation. Consequently, they "qualify" everything they say. For example, "In my opinion Joe Doe is a jerk", or "If I remember correctly, the Packers lost to the Giants in the NFC Championship game," or, "Geez, this was six months ago, but I think Bob went to Dallas for business." Leave out the qualifiers. You say, "Joe Doe is a jerk." You say, "The Packers lost to the Giants in the NFC Championship game", and, "In October Bob went to Dallas for business." A skilled cross-examiner will seize on any qualifiers- even if you used it only as a figure of speech.
4. Pretend you are telling the story to your great aunt Margaret. When police officers testify in court they use a stilted, officious version of the English language that one will hear nowhere else. In "police-talk", no one ever just drives her car down the street. Rather, her "vehicle proceeds east-bound in the 4500 block of west North Avenue." Likewise, many lay witnesses have their own version of the language that only they and their friends can understand. For example, in describing a small party with neighbors where the police are called, one will hear, "We was kickin' it in the hood and then po-po came." The jury will have trouble understanding both of these witnesses. The jury is truly a collection of many different sorts of people. It is critical that the witness describe the events in words that everyone can understand. Tell your story in a way that great aunt Margaret could understand.
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