Preparing a witness to testify
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Most of us, at some point or another, will be conducting a trial. The most essential aspect, of course, is the testimony. Without testimony, there is little evidence, especially in criminal trials. So how do you do it? How do you prepare your witness to testify? Scouring the web, I found two nice articles.
So what are the salient features?
Practice - practice the direct testimony over and over again. I usually do this in four steps:
- First, I go over a general outline of the legal standard with the witness and what evidence I need from the witness.
- Second, I go over the general outline of the questions I will be asking. Now this is an area where personal preferences come in. Sometimes it may be prudent to give the witness a written list of questions and sometimes just a general sense of where the questioning will go. I prefer the latter.
- Then I conduct a lengthy, in-depth direct examination, usually with another attorney playing opposing counsel (for objections and such). This takes time, but is worth the effort.
- Finally, a few weeks after step 3, I go over the direct again, just to cement things.
Attentiveness on the stand - This is a must. We’ve all had runaway witnesses that will say more than they should. I always emphasize that it is very important to listen to the question asked and answer only the question asked.
Truthfulness - Obviously, we all know that this is the most important aspect of any witnesses testimony. Absolute and complete truth at any point. Hammer it home. Doesn’t matter what the question is; always the truth. The truth may be that the witness cannot remember, which is perfectly acceptable.
There are several other minor things, but for me, the above “rules” are essential. What about you, O Criminal Defense Bar? Any particular quirks you like to employ? Any techniques you have found useful?
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The most important part of witness prep, of course, is cross-examination. Always have a colleague perform a hard-nosed, aggressive cross to allow the client to understand what’s coming and try to prepare for it. (Added bonus - often clients who have been difficult up to that point will decide they should plead, after all.)