Credibility, Credibility, Credibiiliy

20130507-001518.jpgThere are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility.  Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable.  A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:

​1.​ Review any relevant documents, especially statements or depositions.

​2.​ Review any exhibits with the witness and make sure they can authenticate them ​​​properly.

​3.​G o back to the scene of the incident at issue and take in all the details. The ​​​witness should try to visualize what occurred.

​4.​ Dress appropriately in business attire or a suit if proper. Do not dress in a ​​​flashy manner.

​5.​ The witness should be advised of any exclusion/separation orders or motions in ​​​limine which have been granted. Regardless the witness should stay outside of ​​​the courtroom until called to testify and should refrain from speaking with other ​​​witnesses or strangers who might be a potential juror or witness. Tell the witness ​​​they are not allowed to talk with anyone about what has happened in the ​​​​courtroom.

​6.​ If asked if you spoke to anyone, be honest and say yes. Advise the witness that ​​​there is nothing wrong with speaking with you before testifying and if he is ​​​asked about it there is nothing to fear. This is part of the preparation process so ​​​that the jury’s time is not wasted and evidence can come in an orderly fashion. ​​​Emphasize the need to be truthful and accurate and tell the witness if they are ​​​asked that this is the primary purpose in meeting with them in advance.

​7.​ Always be a lady or gentlemen no matter how rude the other attorney might be.

​8.​ Conduct yourself in a dignified manner. No chewing gum or tobacco in the ​​​courtroom. Be mindful that once on the grounds you never know who might be ​​​watching. This includes attorneys, jurors or the judge.

​9.​ Take the stand and clearly accept your oath in a calm fashion.

​10.​ Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.

​11.​ Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.

​12.​ Stay factual and avoid exaggerating, guessing or giving opinions where facts will ​​​do the job. Stay away from terms such as “I believe” or “I think” as they indicate ​​​that you are guessing. These terms create “milk toast” answers of little evidentiary ​​value and are dangerous. If you don’t know the answer or cannot recall then ​​​simply say so. Again, don’t guess or speculate.

​13.​ Do not memorize your testimony. Pat answers lack the ring of authenticity and ​​​candor.

​14.​ Listen carefully to the question and do not answer a question that you do not ​​​understand or which has more than one correct answer.

​15.​ Do not quarrel or argue with the other attorney no matter what.

​16.​ Give a direct answer to a direct question. If it can be answered yes or no, then ​​​answer it in that fashion. Do not try and explain the answer if an explanation is ​​​not asked for by the other attorney unless an explanation is truly required. Before ​​​doing so ask the attorney politely, “May I explain my answer?” If he or the judge ​​​says no move on and wait for the next question to be asked.

​17.​ Be careful of absolute terms and questions to “box” you in as a witness. This ​​​includes question that use language such as “So that is all that happened?”, “You ​​​are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ​​​”That is all I can recall,” if you forgot something. The answer, “I don’t ​​​know” means it has never been in your brain, while “I don’t recall” means the ​​​information sought has been in your consciousness, but you are unable to retrieve ​​​the information at the moment.

​18.​ Cover with the witness the foundation for “refreshing recollection” under IRE 612 ​​and “past recollection recorded” under IRE 803(5)

​19. ​Don’t try to sneak in answer. If there is an objection stop immediately until the ​​​Court has ruled and you have been either instructed to move ahead or a different ​​​question is asked.

​20.​ Don’t play attorney and object to questions yourself. That is the role of the ​​​​attorneys, not the witness. That being said, you always have the right to ​​​​understand the question being asked.

​21. ​If you have received a subpoena and witness fee, know that this is perfectly ​​​appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I ​​​received a witness fee for my time. My honesty is not for sale.”

​22. ​If you are on the stand for an extended period and are tired or need to use ​​​the restroom, ask for a break. However, do not speak with anyone during the ​​​break. This is inappropriate and could lead to claims or arguments that you were ​​​being coached.
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​23. ​Most importantly: always testify truthfully and accurately.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on August 31, 2015, in Direct examination, dos and don'ts, mock trial, testimony and tagged , , . Bookmark the permalink. Leave a comment.

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