Written by attorney Mark Steven Cohen

What You Should Know Before You Testify


CHAPTER 1 -- EVIDENCE AND TESTIMONY. Judges and juries decide facts based on evidence. Testimony is one form of evidence. There are other forms, e.g., documentary evidence and physical evidence.

CHAPTER 2 – CREDIBILITY. In determining how much weight to give the testimony of a witness, judges and juries naturally consider credibility. Credibility is particularly important when the testimony of one witness contradicts that of another. Credibility is believability. In determining the credibility of a witness, judges and juries consider many factors - the demeanor of the witness on the stand, whether the witness has a motive to lie, and so forth. It is impossible to list all the factors another person may consider in determining your credibility, but a few are worth emphasizing.

EYE CONTACT: People are more believable when they make eye contact. When people testify, they have a tendency to direct their answers to the attorney asking the questions. DON’T DO THIS! Once the attorney has finished asking the question, turn to the members of the jury (or the judge if it is not a jury trial) and give your answer to them. They’re the ones you must convince. If you’re not looking at the jury, we have tricks we use to remind you. Sometimes we stand near the jury so you are forced to look in that direction. Sometimes we begin our questions with phrases such as “Please tell the jury what happened next."

Eye contact is also important when a case is tried to a judge, but some judges find too much eye contact disconcerting. During the course of a bench trial (a trial without a jury), there may be times when the judge is listening with one ear while reviewing or signing documents unrelated to the case. It doesn’t mean the judge is ignoring you; however, if you think the judge may have missed an important point, be sure to state it again in a different way.

DRESS AND APPEARANCE: Rightly or wrongly, people do consider dress and appearance in determining credibility. We assume a person who looks sharp is sharp. Try to wear something appropriate; interviews with jurors have shown they tend to find people who dress well more credible.

BE OBJECTIVE: If you were hiring someone to work for you, would you want a hot- tempered person with strong opinions on every issue or the person who seems more objective? If you present yourself as fair and objective, you gain credibility. One way to do this is to avoid thinking of yourself as a witness for one side or the other; you are just a witness, period.

BE PREPARED: With apologies to the Boy Scouts, “Be Prepared" is a good motto for a witness who will be testifying, Review all reports and notes before testifying. A witness who can’t remember what happened is less credible than one who remembers an event as if it had just happened. If you appear to be confident as you relate your story, jurors are more likely to believe you. There is another good reason to review the reports and notes prior to testifying; as we will see in the section on cross-examination, defense attorneys love to ask witnesses questions about their prior written statements.

AVOID“LEGAL TALK": Talk in plain English. It makes your testimony easier to understand and enables jurors to relate on an emotional level.

Wrong: “He then proceeded to strike me on my solar plexus."

Right: “He punched me in the stomach with his fist."

CHAPTER 3 -- DIRECT EXAMINATION. Direct examination is that portion of the trial during which the attorney that calls you asks you questions. The purpose of these questions is to elicit your testimony. It is like a baseball game in which you are the batter and the attorney is the pitcher. But the attorney is not trying to strike you out; he wants you to hit a home run, and each question is designed to give you that opportunity. Each question is a chance for you to tell the jury another piece of the story.

CHAPTER 4 — CROSS EXAMINATION. Cross-examination is the opposing attorney’s opportunity to ask you questions. These questions are designed to (1) elicit testimony favorable to the opposing side, and/or (2) reduce your credibility.

EXAMPLE of (1): “After you called the police, my client waited for them to arrive, isn’t that correct?" The inference is that if the defendant was guilty, he would have fled the scene.

EXAMPLE of (2) “Your written statement didn’t mention that my client had tried to choke you, did it?" The inference is that if it had really happened, you would have written it down in the statement you gave to the police.

There are many ways an opposing attorney may attempt to discredit your testimony. These include:

a. showing you have a motive to lie;

b. showing you have a personal or financial interest in the case;

c. showing you are biased in favor or prejudiced against someone;

d. showing you were not in a position to properly see or hear the event;

e. showing your memory is faulty;

f. showing your conduct was not consistent with your testimony;

g. showing prior inconsistent statements;

h. showing things you failed to include in your written statement.


RULE 1: Be truthful. If you don’t know or don’t remember, say so.

RULE 2: Keep your answers as short as possible. The more you talk, the more questions the opposing attorney will ask.

RULE 3: Listen to the question and answer only that question.

RULE 4: Don’t try to guess where the opposing attorney is heading. Attorneys sometimes intentionally jump from one topic to the next in an effort to confuse you. Others don’t even know where they’re going. Answer one question at a time and let the attorney that called you as a witness worry about where the other attorney is going. Returning to the baseball analogy — Keep Your Eyes on the Ball.

RULE 5: Know what you wrote in your prior written statements - and what you didn’t write. Review your statements and depositions before the trial. If there’s something your attorney should know, let him know it before the trial. If you can’t review your statement prior to trial and the opposing attorney asks you a question about something you wrote or didn’t write, you can ask to see the document before you answer. If you left something out that you should have included, admit it. Honesty is the best policy.

RULE 6: Don’t explain. Answer only the question that is put to you. If the opposing attorney wants to know why you did something, make him ask the next question. Attorneys will sometimes remain silent for a minute in the hope that you will feel uncomfortable as a result of the silence and will begin talking again. Don’t fall for this.

RULE 7: Don’t complain. Attorneys come in all sizes and shapes. Some are very professional, some are arrogant. Don’t get into an argument or become combative because it hurts your credibility by making you appear less than fully objective.


CHAPTER 5 — HEARSAY. Generally, you may not testify as to what someone else told you.

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