How to Be a Witness in Court

As a witness in court, you play a very important part of the legal process. In a criminal case, what you say and how you say it can keep an innocent person from going to jail or ensure that a guilty person is not set free to commit new crimes. In a civil lawsuit, your testimony will not usually send anyone to jail, but it can significantly affect fundamental legal rights. Taking the time to learn to be a good witness in court is crucial, because the jury will arrive at a verdict based on not only what you say, but on their impression of you.

Part 1
Part 1 of 4:

Preparing to Testify

  1. Image titled Be a Witness in Court Step 1
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    Review and organize. Consider the main points you plan to convey, bearing in mind that it may not be necessary to address every detail. The attorney(s) for the side you are testifying may help you determine what it most significant, but what you choose to include in your testimony is up to you. Create a physical and/or electronic file that may include notes or reminders, a timeline or sequence of events, hard or soft copy documents or receipts, and references to other items that may be useful as evidence, such as voice recordings, conversations, etc. [1]
    • Create a timeline or list of talking points as you work through your recollection of events and the physical or electronic documents or evidence associated with those events.
    • If you have a number of pieces of evidence supporting your testimony, include a reference to them with your talking points. Initially include anyone or anything that will support your presentation.
    • A simple school binder with tabs is sufficient for a less complicated topic. For more complex testimony, use of electronic tools such as PowerPoint, OneNote or Evergreen may be helpful.
    • Remember that you can't use “hearsay” in your testimony. If you are a witness in a case, you can't relate second-hand information. For example, if your friend Joe told you that he heard the defendant Sarah say that she was going to rob a bank, this is inadmissible hearsay. You did not hear the defendant say she was going to rob the bank.[2]
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    Remember that you can't automatically use your notes during testimony. In most cases in the United States, the Federal Rules of Evidence prohibit witnesses from reading their testimony from documents or notes.[3] If your testimony is extremely long, complicated or highly technical (for example, an “expert witness” with highly technical scientific processes to explain), you may have access to notes.[4] The attorneys will advise you beforehand if you will be able to use notes.
    • If you forget what you want to convey during your testimony, you may be shown notes or documents to “refresh your memory.” These can be used only to remind you of something you once knew.[5] You will have to return the document or notes before making your statement.
    • If you use written documents or notes during your testimony, the other side and their attorney have the right to look at those documents.[6]
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    Review your written statements. If you talked to the police, gave a deposition, met with the attorneys in the case, or otherwise said anything that was written down (or recorded), get copies and read them over. This will help refresh your memory of details you may have forgotten.[7] [8]
    • You may also want to condense, edit or “hold in abeyance” certain points or items of evidence. To hold something in abeyance means to leave something undetermined until a future time when it may be necessary. For example, if you think a part of your testimony is irrelevant -- e.g., a personal anecdote in the middle of a statement about an incident you witnessed -- you can hold it in abeyance.
    • Remember that if an attorney can point out a discrepancy between your court testimony and your previous statements, you can lose credibility with the jury.
    • You will also be more persuasive if you can move confidently through the chain of events. Reviewing your statement will help refresh your memory of what you are testifying to.
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    Prepare with the attorney. Many people believe that it’s illegal for an attorney to prepare a witness ahead of time for the questions that will be asked in court — it's not. Attorneys should have at least a general idea of what their witnesses will testify to. Attorneys in the United States may prepare you as a witness using any or all of the following:
    • Describing your role to you and explaining how to conduct yourself in the courtroom.
    • Discussing your recollections and reviewing any statements you made.
    • Telling you about other evidence and asking you to consider it as you think about your recollections.
    • Going over the context of the case and how your testimony will fit into it.
    • Reviewing other evidence that may be introduced in the case.
    • Discussing probable questions from the other side that you may encounter.
    • Noting when your testimony could be confusing, overlong, or unclear.
    • Suggesting ways to communicate, such as “avoid jargon” or “use powerful language.”
    • An attorney can't tell you what to say or what not to say or give you a script to memorize. These actions are ethics violations.[9]
    • If an adverse attorney is badgering you on this issue, the attorney is likely hoping you’ll say your attorney coached you on what to say (rather than your testimony being about things you personally know or witnessed). This should not be true, unless the attorney who prepared you committed an ethics violation; you should always feel free to say whatever is true in your testimony, regardless of preparation. However, it is not wrong to say that your attorney went over possible questions and reviewed your answers with you.
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    Practice your testimony. If you are a witness in a case where confidentiality is not an issue, try to present your case to a friend or relative who is not involved or familiar with the case. If you are not sure whether confidentiality is necessary, consult with the attorney who prepared you.
    • If your statements seem confusing, contradictory or unpersuasive to someone who is already inclined to accept your point of view, go back to step 1. Review your list of key topics or timeline and the evidence you may have access to. Determine which points are most persuasive, and edit your talking points accordingly.
    • At the same time, be prepared to address any related events or circumstances for which you have direct knowledge.
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    Avoid memorizing your testimony. It’s important to be comfortable with the details of your testimony. You want to convey confidence in what you say. However, attempting to memorize your testimony or talking points could make your testimony sound “pat” or rehearsed.[10]
    • Memorizing is different from rehearsing. Attorneys are allowed to rehearse testimony with their witnesses. This helps you prepare to handle hostile questions and become comfortable with your testimony.
    • Trying to remember memorized wording during your live testimony could also make it more difficult for you to testify confidently. It could seem as though you are “making up” your testimony or are confused.
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Part 2
Part 2 of 4:

Preparing to Appear in Court

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    Familiarize yourself with the courthouse. Acquaint yourself with the building and the locations of the courtrooms, restrooms, coffee carts, etc., so you won’t feel lost on the day you come to testify.[11]
    • Remember that you will have to go through a metal detector and security checkpoint. Your bags may be searched or scanned.[12]
    • Do not bring any contraband or weapons to court. If you must bring prescription medications, make sure they are identifiable as such and that the prescriptions are current.
    • If you can, sit in on a different trial and watch a few witnesses give testimony. This will help you understand how witness testimony works. It may help you feel more comfortable when you testify.
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    Avoid disturbances in your routine. For example, if you usually eat breakfast, don’t skip it just because you might be feeling nervous. Food is not allowed in a courtroom. It can take a long time for you to be called as a witness once you’ve arrived, so be prepared to wait.[13]
    • It’s also a good idea to avoid drugs, alcohol or excessive caffeine before you testify. Even simple cough syrup or allergy medications can leave you feeling foggy and disoriented. Caffeine can make you jittery. A jury will pick up on these signs, and it may influence their opinion of your testimony.
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    Dress your best. Fairly or not, the judge and jury will form an opinion about you based on your appearance. This opinion will have an effect on whether they believe your testimony. Check with your court’s website, if possible; official dress codes are often posted.[14]
    • Wear “business attire,” such as what you might wear to church or a funeral. You do not have to invest in an expensive suit, but your clothes should be neat, clean and modest.[15]
    • Gender norms are usually strongly present within courtrooms. If you are a man, wear a suit and tie, or a button-up shirt and slacks. If you are a woman, wear a skirt and blouse or dress. Women should also avoid heavy makeup and distracting jewelry.[16]
    • You should avoid anything that is too informal or “alternative.” Do not wear flip-flops, sandals, tennis shoes or sneakers or scuffed shoes. Avoid clothing with slogans, printed words, or flashy designs or logos. Don't wear jeans, shorts, t-shirts, miniskirts, low-cut or see-through clothing, low-rise pants or similarly informal or revealing clothing.
    • If you have tattoos, cover them as well as you can.
    • Do not dye your hair an unusual color.
    • Remove body modifications or piercings.
    • Do not wear hats to court. Religious headgear, such as turbans, hijabs and kippahs, are allowed in courtrooms.[17]
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    Contact the court office before your court appearance. It’s a good idea to check in with the appropriate offices before you come to court. Sometimes, cases can be rescheduled, dismissed or settled before you are even called as a witness. Call beforehand to make sure you appear at the right time and place.[18]
    • Call the prosecutor’s office if you are a witness in a criminal case.
    • Call the assignment or court clerk’s office if you are a witness in a civil case.
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    Arrive on time. You will be told when and where to appear in court. You may receive a subpoena, which is a court order to appear in court to testify.[19] You may be held in contempt of court if you are late or do not appear.[20]
    • Give yourself enough time to get to the courthouse. Remember that delays can happen. It may not be easy to find parking, or your public transit could run late. Make sure that you have plenty of time to arrive at the courthouse and be directed to where you’re going.
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    Avoid discussing the case with anyone in the courthouse. Jurors who may hear your testimony in the case could be in the same public areas of the courthouse as you are while you are waiting to give your testimony. You are not allowed to discuss the case with the judge or jury outside of your testimony so do not discuss the case or your testimony with anyone outside the courtroom.[21]
    • If someone approaches you and tries to discuss the case or intimidate you, contact the court staff.[22]
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Part 3
Part 3 of 4:

Testifying in Court

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    Look at the jury. When answering questions, you should primarily look only at the jury or the attorney questioning you. If you look at anyone else, such as the defendant or someone in the gallery, it can seem as if you're seeking approval or checking to see how you should answer. This can hurt your credibility with the jury.[23]
    • Attorneys will often ask that you look at the jury during a direct examination (when your side’s attorney is doing the questioning). This helps the jury to focus on your testimony and build trust and rapport with you.
    • Additionally, maintaining some kind of eye contact with the jury during cross-examination can reduce the effect of an aggressive opposing attorney who wants the jury’s attention on him or her, rather than you.
    • If the judge speaks to you, of course, you should directly address the judge.
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    Pay attention. Listen attentively to the questions that are being asked. Do not let your attention wander. If you look as though you are bored or not listening, your testimony may not be as effective.[24] [25]
    • Maintain good posture while on the witness stand. Sit up straight. Do not cross your arms or slouch.
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    Wait until the questioner is finished. Be careful to wait until the question is finished before answering. This is not a game show where it helps to buzz in early.
    • Remember that a court reporter is tasked with transcribing the proceedings. If you’re talking over someone else, much of what you say may not make it onto the record.
    • Ask for clarification when necessary. If you do not understand a question, ask for clarification. Do not answer a question unless you are certain you know the answer.[26]
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    Answer directly. Answer only the question that is asked. Do not offer information that you were not asked for. Do not guess. If you do not know the answer to a question being asked, say that you do not know.[27] [28]
    • It is especially important to avoid “volunteering” information during cross-examination. The opposing attorney may try to catch you in an inconsistency or confuse you.
    • Focus more on being concise than providing every small detail. Don't “take the long way around” to the answer or include information that you did not directly see or hear. Doing so may make it seem like you are avoiding the question, or that you have something to hide.
    • Do not use statements that convey absolute certainty, such as “Nothing else happened” or “That’s all that she said.” Instead, say “That’s all I recall.” You may end up recalling some additional detail later, and you don’t want to sound like you are lying.[29]
    • If you make a mistake, correct it immediately. Say “May I correct that?” You may be asked why you need to correct your statement. Explain honestly that you made a mistake.[30]
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    Respond clearly and audibly. In many courtrooms, a microphone will record your testimony. Its purpose is not to amplify your voice.[31] Speak loudly enough that the juror farthest from you can hear your answer.[32]
    • Don't answer with nods or head shakes, shrugs, a thumbs up or even an "uh-huh." Don't use slang, legal terminology or police lingo. [33] Your testimony is being written down. For that to happen, you must speak clearly and unambiguously.
    • Don’t use sarcasm or humor. It can be difficult to determine whether you are being serious or not. Humor is highly subjective, and others may not interpret your statements the way you intend them. Speak plainly and honestly.[34]
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    Be polite and respectful. Address the attorneys as "Sir" or "Ma’am" and the judge as “Your Honor.”[35] [36] [37]
    • Don't interrupt the attorneys or be too quick to answer.
    • Don't allow yourself to become angry, even if an attorney tries to provoke you. Angry witnesses may end up exaggerating. The judge and/or jury may not take your testimony seriously if you appear angry or emotional.[38]
    • Don't use obscene language unless you’re asked to repeat what you heard someone else say.
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    Tell the truth. No matter how you think it will sound or how much you think it will hurt your attorney's case, tell the absolute truth. Lies can be easily picked apart by the opposition, which can damage your credibility and taint everything else you said.[39]
    • Do not give your opinion of those involved or accused of being involved. Straying from factual statements can damage your credibility by making it seem like you are biased against one side.
    • If questioned on your feelings toward the defendant, perhaps simply say you came forward as a witness to explain what you saw and heard, and you try not to judge anyone, including the defendant.
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Part 4
Part 4 of 4:

Handling Cross Examination

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    Protect your credibility. Cross examination can be nerve-wracking. The opposing attorney will try to discredit your testimony, or get you to say something that helps his or her side of the case. Be aware of how to handle yourself.[40]
    • Remember that the purpose of cross examination is to raise doubts about your testimony and point out inconsistencies. Do not take these efforts personally.[41]
    • Avoid exaggerating. Make specific, concrete statements. Avoid making broad or overly generalizing statements because they can damage your credibility. [42]
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    Refrain from expanding on "yes or no" questions. The opposing attorney may try to ask you yes/no questions that do not need to be expanded on. Answer with a “yes” or “no.” Do not offer additional information. Trying to explain yourself when asked a yes or no question can be interpreted as dodging the question.[43] [44]
    • Watch out for “leading” questions. You do not have to go along with the information in any question you are asked.[45]
    • For example, you might be asked, “Isn’t it true that you had had four beers when the incident happened?” If you drank only three beers, don't try to explain that. Simply reply “No.” It is in fact not true that you drank four beers.
    • Answer the cross-examining attorney’s questions with “yes” or “no.” Your attorney can bring up any additional questions or ask for further explanation once cross examination is finished.
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    Correct any misinterpretations or mistakes. The opposing attorney may try to twist your words or lead you into a mistake. Remain calm, but explain that you did not say what the attorney claims you said.
    • For example, you might answer that “The light was yellow when I saw car A hit car B.” The cross-examining attorney might say, “So you’re saying the light turned red.” Politely restate what you said: “No. I said that the light was yellow when I saw car A hit car B.”
    • Correcting misinterpretations ensures that your testimony is accurate. It can also demonstrate to the jury that you are reasonable and attentive to detail. It may even make the cross-examining attorney look bad for trying to mislead you.
    • You may be asked whether another witness was lying or telling the truth. Reply that you can’t know what another person might have witnessed or how another person might remember events. This is true, and it shows that you are careful to avoid guessing.
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    Remain calm. Cross examination may get aggressive or even hostile. Stay calm and answer politely. The jury will not trust you if you become angry or hostile.[46]
    • If you remain calm and polite when the attorney is aggressive, the jury will likely see the attorney as being unprofessional. You will not look bad, the attorney badgering you will.
    • If you find yourself getting flustered or angry, pause and take a breath. Think about your answer before you give it. It is much better to take a moment and then answer a question truthfully than to answer hastily and accidentally get something wrong.
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    Admit if you do not remember. The cross examiner may ask you about a previous statement you made. If you do not remember, say that you do not recall and ask to see or hear the statement before testifying to its contents.[47]
    • It’s much better to ask to refresh your memory than to guess about what you said earlier. If you incorrectly state what you think the statement said, the opposing attorney may be able to make it look like you were lying.
    • If you made a mistake earlier and the cross-examining attorney points that out, acknowledge the mistake. Do not get flustered; simply ask to correct it.[48]
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Warnings

  • If you're caught lying on the witness stand or in any statements or depositions you gave before the trial, you can face hefty fines and even go to jail.
    ⧼thumbs_response⧽
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References

  1. ↑ Thomas Mauet, Trial Techniques, 9th Edition (pgs. 505-595).
  2. ↑ https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-90.aspx
  3. ↑ https://www.law.cornell.edu/wex/present_recollection_refreshed
  4. ↑ https://www.law.cornell.edu/rules/fre/rule_702
  5. ↑ https://www.law.cornell.edu/wex/present_recollection_refreshed
  6. ↑ https://www.law.cornell.edu/rules/fre/rule_612
  7. ↑ https://www.gov.uk/going-to-court-victim-witness/review-your-statement
  8. ↑ Thomas Mauet, Trial Techniques, 9th Edition (pgs. 505-595).
  9. ↑ EEOC v. Mitsubishi Motor Mfg. of Am. Inc., No. 96-1192 (C.D. Ill. Oct. 23, 1997
  1. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  2. ↑ http://www.clarkprosecutor.org/html/victim/wtips.htm
  3. ↑ http://courts.delaware.gov/help/proceedings/docs/FCHearing_Chapter1.pdf
  4. ↑ http://litigation.findlaw.com/going-to-court/do-s-and-don-ts-being-a-witness.html
  5. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  6. ↑ https://www.avvo.com/legal-guides/ugc/what-should-i-wear-to-court
  7. ↑ http://www.wsj.com/articles/SB10001424052748704554104575435683853964588
  8. ↑ http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm
  9. ↑ http://www.clermontcommonpleas.com/faqwitn.aspx
  10. ↑ http://www.mass.gov/norfolkda/guideforwitnesses.html
  11. ↑ http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2793&context=clevstlrev
  12. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  13. ↑ https://www.gov.uk/going-to-court-victim-witness/help-and-support-in-the-court
  14. ↑ Thomas Mauet, Trial Techniques, 9th Edition (pgs. 109-271).
  15. ↑ http://www.clarkprosecutor.org/html/victim/wtips.htm
  16. ↑ https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-20.aspx
  17. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  18. ↑ Thomas Mauet, Trial Techniques, 9th Edition (pgs. 109-271).
  19. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  20. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  21. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  22. ↑ http://www.mass.gov/norfolkda/guideforwitnesses.html
  23. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  24. ↑ https://www.mitchell-attorneys.com/good-trial-witness
  25. ↑ http://litigation.findlaw.com/going-to-court/do-s-and-don-ts-being-a-witness.html
  26. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  27. ↑ http://www.clarkprosecutor.org/html/victim/wtips.htm
  28. ↑ http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying
  29. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  30. ↑ http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying
  31. ↑ http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying
  32. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  33. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  34. ↑ https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-20.aspx
  35. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  36. ↑ http://www.nolo.com/legal-encyclopedia/handling-cross-examination.html
  37. ↑ http://www.clarkprosecutor.org/html/victim/wtips.htm
  38. ↑ http://www.justice.gov/usao-wdwa/victim-witness/witness-info/tips-testifying
  39. ↑ http://www.justice.gov/usao/pam/Victim_Witness/testifying_tips.html
  40. ↑ http://www.clermontcommonpleas.com/faqwitn.aspx

About This Article

Clinton M. Sandvick, JD, PhD
Co-authored by:
Clinton M. Sandvick, JD, PhD
Doctor of Law, University of Wisconsin-Madison
This article was co-authored by Clinton M. Sandvick, JD, PhD. Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. This article has been viewed 167,769 times.
162 votes - 88%
Co-authors: 24
Updated: October 21, 2021
Views: 167,769
Categories: Featured Articles | Court Practice and Procedure
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