Thursday, October 10, 2013

I'm Telling the Truth, Basically

Watch your language. It's not something you expect to say to adults getting ready to place their hand on the Bible and swear to tell the truth.

In preparing a case for trial, it is obviously important to speak with your witnesses prior to testifying. I absolutely prepare my witnesses for trial, but I do not script out what I am going to say and what they are going to say. I make bullet points of the issues I need to hit and then I let the questioning flow organically from that based on all the conversations we've had and the elements of a given case. This way I can respond to what the witness actually says, not just read the next question on my list.

But there comes a time when every attorney must instruct a witness to refrain from doing something. These are often things like pointing out an annoying nervous habit that will distract the jury. Lately, what I find is I need to speak to the witnesses about language qualifiers.

Not sure what I mean?

Q:  Were you working on April 16?
A:  Yes.
Q:  Did you respond to 184 Lasalle?
A:  I believe I did.

You believe? You either did or you didn't, especially when you proceed to discuss everything that happened at 184 Lasalle.

Q:  Did you stab him?
A:  Yes.
Q:  With what?
A:  A knife.
Q:  Was that because you were defending yourself?
A:  Basically.

Basically? This is what the entire case comes down to and the witness is using basically like it is an affirmation. Jurors take this to mean that most of what is said is true, but it's not everything.

Q:  What color was the jacket the robber was wearing?
A:  If I remember correctly, it was red.

This usually happens after the witness had told me unequivocally that the jacket was red ten minutes before testifying.

My favorite:

Q:  What was the weather like?
A:  To tell you the truth, it was rainy.

To tell you the truth? Was everything said up until that point a lie?

Most of these are verbal crutches we all have, or phrases we fall back on when we are nervous. Testifying in front of an audience, especially about events a person would rather forget about, induce many nerves. Also, once a witness is on the stand getting grilled during cross-examination, they can truly question if the jacket was red. Once you are under oath, are you really certain of anything?

I tell my witnesses to avoid these and other crutches. They were there and witnessed the events so testify with conviction. A witness is free to say "I don't know" or "I don't recall", but if they do know and recall just say what they observed or heard without the hesitation.

Every attorney needs to be a witness under oath at some point to see the process from the other side. I've done it a few times now, and while it's never a comfortable experience, I've successfully avoided using all of the above phrases.


1 comment:

  1. Nothing like having your witnesses undermine their own testimony, huh? Those verbal crutches are hard to shake, especially when you're nervous or flustered.