Even when you are
equipped with the skills and strategies covered in Cross-ExaminationHandbook, they will not be enough to do damage to the credibility of a
tough witness. A tough witness is one who is armed with the truth and has been thoroughly
prepared to testify at trial. The best that you can accomplish with a tough
witness is to elicit concessions that either support your case theory or undermine
the other side’s case theory.
What is entailed in the
thorough preparation of a witness? The
following is an indispensable checklist along with notes for thorough and
effective witness preparation that you can use when you prepare your witness. And,
when you come up against the tough witness, you know that opposing counsel has relied
upon a similar checklist.
Ö Preparation for the courthouse and courtroom:
– Courthouse – where is it? Note: It is not unheard of that a witness
will go to the wrong courthouse or courtroom. Tell your witness not only where
the courthouse is but also where the courtroom is located.
– Courtroom Layout. Notes: Much of your witness preparation is
designed to familiarize the witness with everything. Most people have a fear of
the unknown, and this preparation can alleviate some of that fear. Either show
the witness a diagram of the courtroom or take the witness to the courtroom. If
you have a child witness, definitely take the child to the courtroom, have the
child sit in the witness chair and otherwise learn about the courtroom. Tell
the witness who the courtroom players are and where they will be positioned in
the courtroom, such as where the clerk, bailiff and court reporter are situated
(except for the defendant in a criminal case which could result in a mistrial).
–
Don’ts: Notes: Tell the witness not to discuss
case in or around the courthouse. because jurors may be on the street around
the courthouse or in the halls or on the elevator. Instruct the witness to not
enter the courtroom until summoned because witnesses are excluded. This does
not apply to the client(s) and to the detective in a criminal case.
Ö Preparation on the witness’s role and
substance:
– Witness’s Role. Notes: Tell your witness to tell the truth. If
it hurts, tell the truth. Tell your witness that the only instruction that you
have given them regarding what to say is—tell the truth. Ask the witness, “What damaging
information is out there?” You need to know because only if you know what it is,
can you deal with it.
– Review Prior Witness Statements. Notes: Have the witness review all prior
witness statements that the witness has given. Tell the witness before the
witness goes over the statement that the witness should not feel wed to what is
in the statement. If there is something erroneous, the witness should let you
know.
– Cover the Witness’s Story. Notes: Go over the witness’s story in detail
and probe for any weaknesses. If there is a weakness, have the witness explain.
Witnesses are commonly not good at estimating things like time and distance. Go
over this. For example, if the witness says that the two individuals were five
feet apart, have the witness show you how far they were apart using objects in
the room.
– Practice Direct Examination. Notes: Walk through it. Practice with exhibits and
demonstrations
–
Practice
Cross-Examination.
Notes: Explain to the witness that you are going to step into opposing
counsel’s shoes and conduct a cross-examination (you may have another colleague
do it). Ask tough questions that you expect from the other side. Tell your
witness not to worry about cross-examination because the witness is telling the
truth.
Ö
Preparing the Witness on How to Testify:
–
MRPC
3.4(b) prohibits
coaching to testify falsify. Notes: However, you can help the witness be a good
communicator. Help the witness be Confident, Clear and Credible.
–
1. Have a Good Appearance. Notes: Tell the witness to dress
appropriately for court. When sitting in the witness chair, the witness should have
good posture—sit up straight. Speak
clearly, and here you can explain the role of the court reporter and the need
to speak clearly and not to rapidly. The witness should avoid distracting
habits, such as chewing gum or fiddling with a pen.
–
2. Courtroom Rules. Notes: Tell the witness that if there
is an objection, stop talking and listen for directions regarding what is to be
done next. Tell the witness that if they can’t remember something, say so. And,
explain how you may seek to refresh recollection if the witness can’t recall
and the procedure for refreshing recollection.
–
3. Communication on Direct. Notes: Tell your witness that only the
jury counts, and that the witness should talk to them. If court procedures
permit, explain that you will stand at the end of the jury box so that the witness
will be looking down the jury box towards you. Tell the witness that this
courtroom positioning is intended to remind the witness both to speak up so the
furthest away jurors can hear and to look the jurors in the eyes and talk to
them as though they were having coffee together. Tell the witness that the
jurors have no axe to grind with the witness and they are just trying to learn
the truth, which the witness will deliver.
–
4.
Communication on Cross. Notes: Discuss keeping composure on
cross. You can explain that the witness should never get cute or argue with the
questioner. To assist the witness with that endeavor, you can explain that
while the witness will not be able to address the jury after testifying,
counsel may and in doing so, counsel can comment on the witness’s lack of
composure and how the witness’s demeanor showed the witness was not credible.
Explain that contrary to direct examination when the witness should look at the
jurors, during cross, the witness should look directly at counsel. Instruct the
witness listen carefully to the question that is asked and answer it directly.
Don’t volunteer information.