Taking the Witness Stand
Testifying at trial creates tremendous anxiety for a witness because the stakes are often high. Maybe you are in a custody fight, and if you lose, then the other parent will get full custody of your child. Maybe you witnessed a crime being committed and are called into court to testify about what you saw. Maybe you are accused of a crime and wish to take the witness stand in your own defense.
Jury trials add an extra layer of stress because there are either 6 or 12 people from the community who will hear the testimony and weigh the evidence before returning a verdict. More importantly, these 6 or 12 people bring their own life experiences into the jury room when weighing the evidence. Below are some thoughts to help you prepare before taking the witness stand and testifying in a jury trial. (Note: ALWAYS CONSULT WITH YOUR ATTORNEY BEFORE TESTIFYING AND LISTEN TO HIS OR HER ADVICE. FURTHER, AND MOST IMPORTANTLY–NEVER LIE–IT WILL ONLY CAUSE YOU MORE TROUBLE.)
But first, the obvious. If you are accused of a crime, you have an absolute right not to testify in your own defense. Below is part of a jury instruction the Court gave in a recent federal criminal case I handled:
The indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require the defendant to prove his innocence or produce any evidence at all and no inference whatever may be drawn from the election of a defendant not to testify. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
This is a powerful jury instruction that benefits all defendants that stand accused of a crime. The decision to waive this protection and testify in your own defense should be made only after careful consultation with your attorney about the pros and cons of taking the witness stand.
One surprising thing most people don’t realize is that many people elect not to testify not because they are guilty–but for other reasons. Some examples include: (1) being too nervous to testify; (2) English is not the witnesses native language; or (3) taking the witness stand would require making embarrassing admissions about drugs, infidelity, or other personal matters. This list is not exclusive. There are many more reasons a person may not want to testify.
But what if you choose to testify? Read below on some ideas to help you testify at trial.
1. ALWAYS TELL THE TRUTH. Never lie. If you are caught in a lie, you may be charged with perjury. And just as important–if the jury catches you in a lie, then your credibility will be damaged with the jurors. No matter what, always tell the truth.
2. RELAX. Testifying in court creates anxiety and stress. This often causes witnesses to speak faster than normal, which creates two problems. First, there will be a court reporter who is required to take down the testimony of all witnesses. He or she will have difficulty recording the testimony if you are speaking to quickly. So relax, take a deep breath, and slow down when you testify. Second, if you speak too quickly, then the jury will have a difficult time understanding what you are saying and the value of your testimony will be diminished. This is never a good thing.
3. TESTIMONY MUST BE CREDIBLE. Whatever you say, it must be consistent with not only the facts, but also common human experience.
The following text comes from a jury instruction in a federal criminal trial: “You [the jurors] are the sole judges of the credibility or ‘believability’ of each witness and the weight to be given the witness’s testimony. . . . In making [the credibility decision] I suggest you ask yourself a few questions: Did the person impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear things about which he testified? Did the witness have the opportunity to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses?”
[Below is a scene from 12 Angry Men with Jack Klugman–where they are weighing the credibility of the testimony and evidence presented at trial.]
4. TESTIMONY MUST BE MEMORABLE. This rule comes from Herbert Stern, Trying Cases to Win. As Stern succinctly put it: “The testimony must be memorable. If it is clear, but its significance does not remain with the jury, it is worthless.” You must work with your attorney to prepare for trial so that you can make your testimony as memorable as possible.
Taking the witness stand in a civil or criminal jury trial is a significant event that causes stress and anxiety in most witnesses. It is important that you work with your attorney to prepare to testify at trial.
Genaro R. Cortez