Clearing up the Confusion About the Witness Stand: Essential Facts for Court Trials and Hearings

What is the Purpose of the Witness Stand?

The witness stand serves multiple purposes during a legal proceeding, the most basic of which is to provide a designated place for a witness to render their testimony. Testimony is required in order for the judge and/or jury to understand the events that have occurred and form an opinion as to the cause of a car accident, medical incident, or other negative event. For example, if you were injured and decided to file a lawsuit, you will likely be required to testify about your injuries and the incident that led to them before it is decided whether or not you get a financial award as a result of the at-fault party’s negligence.
It is also important to note that a witness is free to answer questions from any place in the courtroom, but the witness stand exists in order to ensure that all questioning and answering is conducted in a uniform manner, and that everyone in the courtroom is able to clearly hear what is being said.
In addition to providing a clear platform for a person to testify, the witness stand helps to facilitate the truth-finding goal of a courtroom proceeding . When an attorney is questioning a witness, they are typically required to do so in a very specific way. For example, a lawyer cannot simply ask the witness what they think happened during the accident.
Instead, a qualified attorney must ask the witness to provide a detailed account of the accident. They must also be mindful of the fact that the witness may be hesitant to share certain information. Sometimes, witnesses are unclear of what exactly happened during an accident because they were too far away or didn’t have a clear line of sight. In other cases, witnesses don’t want to testify against friends or loved ones because they are worried about damaging those relationships.
Although clients cannot be present as witnesses, they can rely on their attorney to question witnesses properly and in a professional manner. The witness stand is an integral part of a courtroom and justice system that relies on honesty in order for wronged parties to be fairly compensated in civil court cases.

Legal Guidelines for Ascending the Witness Stand

The final requirement of the Rules of Evidence is that the witness has to be competent. A witness must be competent to take the stand, which means that someone on the witness stand cannot have been declared incompetent by a judge or able to testify without a sufficient level of capacity. Just because a person is willing to talk in front of a courtroom does not mean that they are legally capable of doing so.
The first prerequisite that a witness must follow before they are sworn in is that they state their full name and address to the court. This information is usually followed by a request by the court for the witness to explain what happened. Following this request, the witness is then sworn in by the court reporter by taking an oath to speak the complete truth about the matter. This requirement is where we see the most problems for the witnesses when in court, because they often do not realize that the oath actually has a significant effect on their ability to speak in court.
Taking an oath in court is not just a formality; it is a reflection of the fact that the witness must tell the truth. Because of the oath that the witness has just taken, they can only provide truthful testimony; there is no ability to plead the fifth in a civil case since it does not hold anything criminally related. This oath applies to anyone in a courtroom setting, including the attorneys, parties involved in the case, jurors, and more. The only individuals who are not required to take the oath are the judge, court attendant, and whether or not the jury was present in the trial.

Different Classes of Witnesses and Their Responsibilities

The witness stand is where the action is in court. The judge and jury lean forward in their seats and await with great interest what the witness will say. Will the testimony be a surprise or will it be expected? Either way, many questions abound as to who these witnesses are and what their respective roles are in each case.
There are three main categories of witnesses: expert, lay and character.
Expert Witness. Expert witnesses have experience or knowledge about particular facts that would be beyond the common knowledge of a typical jury, and the attorney wants to introduce the expert’s opinion on those facts to the jury, after he or she has qualified the expert. The key to such qualification is the Federal Rules of Evidence and the Federal Rules of Civil and Criminal Procedure, as well as case law. Some areas where expert testimony has been admitted include toxic torts, causation, admissibility of lie detector tests, DNA evidence and other types of scientific evidence. An example can be found in Kumho Tire Co. v. Carmichael et al, 526 U.S. 137, 119 S. Ct. 1167 (1999) in which an expert tire mechanic was called to testify about the allegedly defective tire that purportedly caused a tragic accident killing the plaintiffs’ two children. Prior to trial, defense counsel moved to exclude his opinion about the alleged defect, and the District Judge, after a Daubert hearing, concluded that the mechanic was not competent to testify as to whether the tire was defective. In reversing, the U.S. Supreme Court held that the district judge had misapplied the standard Rule applied to scientific testimony.
Lay Witness. A lay witness can testify because the testimony is based upon personal knowledge. For example, a witness may be called to testify as to what he or she experienced because he or she was there and saw or observed the events or conditions firsthand. This is admissible testimony and is not considered expert because the witness is relying on what he or she already knows or has witnessed at the time of the event and does not require the witness to give an opinion based upon more than the observations. Examples can be found in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. (1993), substantially, generally discussed in this blog; and English v. Sioux City & Pacific Ry. Co., 8 S.D. 338, 340, 16 N.W. 482, 483 (1883) (The mere fact of responsibility for a fire, according to the views of the jury, may authorize them to regard the party charged with negligence as guilty of that charge. The fact of responsibility, with no other proof, was held insufficient to sustain the verdict in a fire case.)
Character Witness. A character witness is a person who knows another party involved in the case sufficiently enough to have formed an opinion about that person’s character. While character witnesses may know the other party and his or her character very well, these determinations are usually based upon reputation and not opinion. As an example, a party may bring in a character witness to testify to the other party’s honesty or dishonesty. This type of testimony may be introduced by way of reputation evidence. Reputation evidence is admissible for certain purposes. The Federal Rules of Evidence provide that reputation evidence about a person’s character may also be admissible to support or impeach that person when character is at issue, and may also be admissible to prove character in a criminal case. An example can be found in Burston v. Minneapolis, St. P., S. & Pac. R. Co., 557 F. Supp. 411 (D. Minn. 1983) (In a fire case, exclusion of lay opinion reputation evidence to the character of defendant was in error, although the jury was instructed to disregard the testimony.)
There are many other types of witnesses. It is critical that an attorney focus on identifying the right witnesses and what testimony they should expect from them in preparing his or her case for trial.

Common Problems on the Witness Stand

While it may seem obvious that people struggle on the witness stand, the specific types of struggles will often come as a surprise. If you were to ask anyone who studies this area, including expert witnesses and forensic accountants, they will tell you that people struggle with recalling their background, training, experience, expertise, and other details about themselves. It may seem strange that people would struggle recalling such straightforward information, but once you sit down in front of a judge or jury, your mind can go blank when you’re being asked to testify. For whatever reason, whether it’s the new environment, not remembering that you have a history of working on a particular case, or just failing to remember all of the great things you’ve done (because you’ve done quite a lot), people frequently have trouble doing so. What seems easy in life becomes difficult on the witness stand, like recounting how long you’ve been doing something or the amount of experience you have. The reason for this challenge is while the questions may seem easy, the pressure to answer correctly – while under the microscope of the court system – can be significant.
While it sounds simple, we found one of the more problematic areas in our work involves witnesses simply saying no or yes. While you might find some people who don’t like saying no or yes out of a fear of sounding abrasive or rude in day-to-day life, the same question might get you in big trouble in a court proceeding. If you look at the classic example of the yes man, that’s the person who has no problem answering yes to every question. While it works in day-to-day life, this is incredibly damaging on the witness stand. If I ask if you’ve ever given an expert opinion, and you said yes, then subsequently "remember," that you never gave an expert opinion, that contradiction can come back to hurt your case. That’s because the court will likely believe the worst of your character if you change your answer, which is a big problem. The same can be said for the classic dodge superb. This is when you shift the answer by not actually answering the question being posed. While it’s easy to say that you know you shouldn’t answer questions this way, when you’re on the witness stand, these reactions happen instinctively. We covered this topic in our blog post Commonly Asked Questions About Expert Unexpectedness With Addition of Expert Witnesses, where we discussed how people instantly react, without thinking, and overcompensate by providing way too much information in addition to the question being asked. This issue falls apart because you also lose sight of the easy answer, which is yes or no. Instead, it’s easier to say you’re not sure, you don’t remember, you don’t know, or move on to the next question entirely.
This isn’t to say you should aim for short answers, rather, you should look to be short and concise. You don’t want to sound repetitive, and you don’t want to sound like you’re responding with any pre-existing script. While the central goal is to make a good impression and not sound overly aggressive, it’s important to sound confident and calm in how you answer, rather than giving long, wordy, and less insightful answers.

Entitlements and Protections Afforded to Witnesses

Witnesses are afforded several rights and protections when testifying on a stand in criminal proceedings. Victims, for instance, are protected from any action on the part of the defendant that may intimidate or cause them harm during their testimony. Likewise, witnesses have the right to testify free from intimidation and threat. This is also called the victim’s right of protection, and it is established in state and federal law to ensure that perpetrators of violence do not use their influence to sway the testimonies of those who may be involved in legal actions against them.
Intimidation is defined as any threat that is meant to exert influence over someone. For example, the defendant may otherwise threaten or harm the family of the witness.
Factors like whether or not the witness has been threatened may be taken into consideration . Given that the witness may be a friend or family member of the victim, the defendant may attempt to influence him or her through intimidation.
The experience of being threatened with violence can leave the victim feeling anxious and afraid. As such, there are certain protections and rights offered to the victim or witnesses. For instance, the victim may use a pseudonym when testifying whereas the defendant does not enjoy this same right. Furthermore, if the defendant is engaging in any conduct that may intimidate the victim, he or she has a right to seek protections from the court.
Witnessees may likewise obtain a lawyer to help defend themselves in court. Where they face any potential harassment by the defendant, the witness has the right to be accompanied by a lawyer when testifying. The defendant’s right to an attorney does not apply to his witnesses, only the victim’s.

The Effect of Testimony on Cases and Outcomes

Lawyers and clients alike may not understand the full extent to which witness testimony-particularly expert testimony-can influence the outcome of the case. Consider for example, this 2008 article in the DePaul Journal of Health Care Law "The Power of Persuasion: The Impact of Experts on Personal Judgments by Jurors", which reports on a survey of 601 prospective jurors from Colorado and Illinois "to assess the extent to which established expert testimony on anyway affects jurors’ rational deliberations". This article notes that jurors in the survey was affected by the expert’s performance, and that this was especially true if the expert’s assertions went "against the jury’s expectations". So, in the case of a medical malpractice suit, in which an expert physician testifies, for instance, that the treatment in question was consistent with appropriate medical standards, jurors may be more likely to discount evidence to the contrary by the plaintiff’s attorney.
The 2008 study found that jurors "uniquely perceived" the aspects of doctor caliber, objectivity, and demonstration of professed knowledge, and that these aspects were particularly impactful on the decision-making process.
So, in order to affect the outcome of the case, knowing how to present expert witnesses on the stand is critical. Expert witnesses, while possessing great knowledge of the evidence presented, may sometimes be less than stellar in their delivery, and it would be to the litigant’s benefit to know how to assist the expert in communicating most favorably to the judge or jury.
For example, the Chicago Tribune published an article on April 7, 2001 entitled "Expert Witnesses Can Be a Fair Fight in Civil Litigation", which I found to be very instructive. The article quoted Matthew Solomon, a principal with the Chicago-based litigation support company, "Prime Case Management", who said "You want to make sure [expert witnesses] do what you ask them to do and that they don’t shoot themselves in the foot" This echoes the results found in the 2008 expert testimony study, wherein jurors were "more likely" to discount the remainder of the expert’s testimony if certain key factors were not met. Solomon’s suggestion of picking apart the witness on cross-examination is similar to my own thoughts in "Getting the best from your Expert". That said, the witness presentation itself is equally as important as the defense in shaping the jury or judge. Expert witnesses, while possessing great knowledge of the evidence presented, may sometimes be less than stellar in their delivery, and it would be to the litigant’s benefit to know how to assist the expert in communicating most favorably to the judge or jury. With this in mind, another recent Chicago Tribune article entitled "Top Witness: A Fine Art Makes for a Great Performance" brings to light the importance of teaching the most favorable aspects of the expert witness’ testimony, while also helping jurors understand the process.

Landing on the Witness Stand: Advice for Witnesses

Preparation is key for successful witness testimony. To ensure you’ll be ready for your time on the stand, take a look at the advice below:
Get familiar with the facts. "Facts" describe what one person knows to be true about the situation you’re being called to testify about. Your attorney will review the facts with you before you get on the stand, and you’ll likely have a chance to read over them a final time while you’re being sworn in.
Take your time. When you’re asked a question in court, a judge will neither allow long pauses nor rapid-fire responses. Take a moment to consider what you’re being asked, and provide a calm, reasoned response. If you’re asked about a certain person’s actions, but you haven’t seen him or her in quite some time, for example , it’s best to state that you only know what you observed or were told.
Listen carefully. Witnesses are often expected to converse with judges, attorneys, and court officers about the questions that have been asked and the answers they provided. If you don’t understand the question, be sure to ask for clarification before answering. Also, pay close attention to the judge’s comments throughout the case.
Present yourself appropriately. Your dress and demeanor when taking the stand is of utmost importance in the court. Always follow the recommendations of your attorney; in general, however, you should wear formal clothing and strive to appear completely confident while remaining humble.
When it’s time for you to testify in a court proceeding, a thorough understanding of the facts, your own personal experiences, and the attire and demeanor that judges expect from witnesses will help you prepare for success.