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Four Things To Know About Testifying

October 29, 2018

You’ve just been served with a subpoena to testify at a deposition. A regulator has served you with a demand for an “on-the-record” interview. Your lawyer says you’ll be his star witness at trial. When confronted with one of these scenarios, you’ll probably get that “I’ve-been-called-to-the-Principal’s-office” dread we all experienced in grade school. You will have to testify in a legal proceeding under oath. What does that mean, and how do you do it right? Here we discuss four aspects of testifying: (1) The law related to testimony; (2) The forms testimony takes; (3) How to prepare for testimony; and (4) How to testify.

Because we’re lawyers, we need to add a word of caution about what we’ve written here: This is not legal advice, and is not a substitute for consulting an experienced attorney before you testify. Whether it’s us or another lawyer, consult a lawyer before testifying in any legal proceedings.

Finally, we are based in Danville, California in the San Francisco Bay Area, east of Oakland and south of Walnut Creek. Much of this article applies generally to testimony in the United States regardless of forum. But the law we cite below focuses on California law applied in California state courts.

Testifying Part 1: The Law Regarding Testimony

The Oath

Before a witnesses testifies, a court reporter (sometimes called a CSR which stands for Certified Shorthand Reporter) or a courtroom clerk asks the witnesses to raise their right hand and swear or affirm that the testimony they are about to give is the truth. Unlike television courtroom dramas, witnesses in California are no longer asked to place their hands on a bible, and they are not asked to swear that they will “tell the truth, the whole truth, and nothing but the truth, so help me God.” But regardless of the words, the effect is the same. The witness has now been sworn and the testimony they provide is subject to the penalty of perjury under California Evidence Code § 165.

Penalty of Perjury

California Penal Code § 118(a) says that every person who takes an oath and testifies to a material matter as true which he or she knows to be false is guilty of perjury. Section 118(b) says that no person shall be convicted of perjury solely by contradictory testimony of another person other than the defendant. But it also warns that proof of falsity may be established by direct or indirect evidence.

The key element to prove a charge of perjury is that the false statement must be “knowingly” made. It is not enough for the prosecutor to prove that the witness testified falsely. The prosecutor must also prove that the witness knew the testimony was false when they said it.

What does this mean if I need to testify?

The simple answer is tell the truth. Your sole responsibility on the witness stand is to answer truthfully the questions you are asked. This sounds easier than it is because of the competing pressures that often distract witnesses from the simple responsibility to be truthful. For example, witnesses often believe that it is their job to help one side or the other win their case. Rather than concentrating on the truth, they start “spinning” their answers to “help.” Witnesses who make this mistake can easily end up in trouble. Another example: some witnesses believe that they must have a perfect memory of events that occurred weeks, months, or even years ago. They fill gaps in their memory with guesses about what they think happened. This is a mistake because it deviates from the witness’s sole responsibility to tell the truth.

Testifying Part 2: Types of Testimony

Testimony can be provided in several ways: (1) By written statement, usually called a declaration or affidavit; (2) by deposition or on-the-record interview that may be recorded by a court reporter or a video or audio recording device; or (3) by providing live testimony in a trial or evidentiary hearing, arbitration, or other quasi-judicial hearing. Regardless of the form testimony takes, the law and the oath are the same, so the witness’s duty to tell the truth remains the same.

Testimony by written statement

A large portion of evidence submitted to courts and investigators comes in written statements signed by witnesses under penalty of perjury. Depending on the forum where the evidence may be admitted, these written sworn statements may be called affidavits or declarations. An affidavit is usually signed in front of a notary public while a declaration is not. In California, lawyers typically use declarations because affidavits are not required. Although these written statements are sometimes admissible evidence, they are viewed with some skepticism because they are not subject to cross examination, and they are often prepared by lawyers. Courts limit the circumstances under which they can be used. If you are asked to sign a declaration or affidavit, make sure it is accurate because under the law, it is as if you were in court testifying to a judge or jury.

Testimony at a deposition or on-the-record interview

Under both methods of testimony, a witness is sworn and then asked questions by someone, usually a lawyer. The answers are given under penalty of perjury. The questions and answers are usually recorded by a court reporter, and may also be recorded by video and audio recordings. These methods are tools that lawyers and investigators use to discover information about their case or investigation. They can be wide-ranging and tedious. In California, lawyers are generally given 7 hours to take a witness’s deposition. In complex cases, the time may be extended. Lawyers and investigators are given broad latitude on the scope of questions. For example, in California, questions lawyers may ask in depositions are limited only by whether the answer may lead to admissible evidence – a broad standard. If a witness is outside the trial court’s jurisdiction, deposition testimony may replace live testimony. Courts view deposition testimony less skeptically than declarations or affidavits because the witness’s testimony was not written by an attorney, and because the witness was subject to cross examination.

Testimony at trial, arbitration, or other setting before a trier of fact

This occurs when a witness is called to testify at a “live” hearing before a judge, jury, arbitrator, or other trier of fact. After the witness is called, they are sworn in. The lawyer then questions the witness. Sometimes the judge or other trier of fact asks questions of the witness. Depending on the witness, the questions from the lawyers may be considered direct examination or cross examination questions. Direct examination questions are generally designed to allow a witness to provide testimony in an interview or even conversational format. Direct examination questions often begin with “who,” “what,” “where,” “when,” “how,” and “please describe.” Cross examination questions test the truth or accuracy of the testimony provided. These questions are more dramatic, and even accusatory. Lawyers may use leading questions (i.e., questions that seek only “yes” or “no” answers) when cross examining a witness. Cross examination questions often begin with words like, “Isn’t it true that . . .” Courts favor live testimony because it allows the trier of fact to see the witness’s demeanor, mannerisms, body-language, and other non-verbal cues while being questioned, which helps the trier of fact determine whether a witness is credible.

Testimony Part 3: How to Prepare to Testify

Once you know the form of your testimony, it’s time to prepare. Here are things to consider as you prepare to testify.

Consult your own lawyer

You should always consider retaining your own counsel. Many lawyers will discuss whether a potential client should retain them without charging the potential client. For example, if you witnessed a car accident and you have been subpoenaed to testify about what you saw and heard, you probably need not retain your own counsel to help you prepare. On the other hand, if you are a party to litigation, a potential party, or your testimony could affect your professional license, seriously consider retaining your own counsel. Yes, lawyers are expensive. But the long term consequences of going it alone can cost you far more.

One benefit of hiring your own attorney is the attorney-client privilege. The privilege allows you to communicate freely with the attorney about areas of concern, and to ask all of your questions without fear of appearing guilty or untruthful. An attorney can also advise you on whether you are under a legal obligation to appear, whether you need to bring documents to your testimony, and whether there are areas about which you need not answer questions because the law recognizes a privilege. For example, in California, witnesses have a right to financial privacy that may allow the witness to refuse to answer questions about their income or net worth. Other examples include a witness’s right to refuse to answer questions about communications with the witness’s physician, priest, or lawyer.

Finally, if any risk of criminal prosecution arises out of the subject of your testimony, a witness may assert the Fifth Amendment right to avoid self-incrimination. Knowing whether and when to assert a Fifth Amendment right to remain silent is something best handled by a lawyer who represents the witness.

Read the subpoena or letter demanding your appearance

This sounds painfully obvious, but it’s an important task easily overlooked. The subpoena or letter summoning you to testify should answer many important questions:

This information will help you prepare for your testimony. If you are asked to bring documents to your testimony, those documents will probably be the focus of many, if not most, questions asked during your testimony. The answers to these questions will also help decide whether you need a lawyer.

Should I review materials to prepare to testify?

This important question needs to be answered in consultation with an attorney. Often, it is prudent for a witness to carefully review documents before testifying. (The lawyer or investigator asking you questions will have spent extensive time reviewing documents, so it may be a good idea for you to do the same.) You may also want to review emails, calendars, text messages, and other forms of social media before you testify.

Sometimes document or social media review is unnecessary. Lawyers and investigators are trained to ask witnesses what they have done to prepare to testify, and whether the witness has seen or read anything to refresh the witness’s memory. Under California law, if you review a document subject to the attorney-client privilege to refresh your memory, it may no longer be privileged. Even if what you review is not privileged, the fact that you reviewed it may make it discoverable.

Finally, as the day of your testimony approaches, confirm your testimony is still necessary. Litigation is subject to last minute changes, so it is advisable to confirm with the office that served you with the subpoena that your testimony is still proceeding at the noticed time and place.

Testimony Part 4: How to Testify

You have prepared (or not prepared) as advised by your counsel. You have arrived at the location at the appointed date and time. Now, it’s time to testify. How do you do it effectively?

1. Tell the truth

It’s the law. It’s what you promise to do when you are sworn in. It also makes you a better witness. Your sole responsibility on the witness stand is to answer truthfully the questions you are asked. It is not your job to win the case (see below). So always tell the truth. If you remember that, but forget the rest of the tips below, you will be a successful witness.

2. Do not pretend to know it all

Testimony is not a memory test. It’s often an open book exam. If you are asked a question that requires you to look at a document or record, just say so. Ask for permission to look at the document. If the questioner does not comply with your request, then truthfully answer that you do not recall.

3. Do not guess

The lawyer word for guess is “speculation,” but it means the same thing. If you do not know the answer to a question, then say that you would have to guess. To follow rule 1 above, you have to say you do not know or you do not recall. Guessing often gets witnesses in deep trouble. If you guess wrong, the lawyer on the other side will know it and pounce.

4. Listen to the question

This is an important but difficult thing to do. A witness who does not listen to a question often provides long and rambling answers that are not helpful. Answers that are not responsive to the question come across as evasive. If you cannot recall the question or do not understand it, say so and ask for it to be repeated or rephrased.

5. Remain professional and neutral

The tone of questions from different lawyers varies. Your posture, tone, and reaction should be neutral. If you are being accused of something horrible, it’s human nature to be defensive in your answer. But if you are too defensive, too hostile to the other side, or change your demeanor like a chameleon depending on which side is asking the questions, you will lose credibility.

6. Listen to the objections, but do not make them yourself

Pause before answering each question to allow the lawyers time to object. Here are some common objections:

Sometimes, witnesses try to object to questions asked. This is not appropriate. Please leave the objecting to the lawyers.

7. Don’t try to win the case

Evidence wins cases, not arguments from witnesses. Ironically, one way to harm a case is to try to win it with your testimony. Nothing will sink a witness’s credibility faster than testimony that makes it clear that they are trying to win the case instead of simply telling the truth.

8. Keep your cool

Angry and impatient outbursts rarely work to the benefit of the witness. Such reactions often play into the hands of the other side because the witness appears defensive, informs the questioner of emotional soft spots, and blurts out non-responsive information. If you get upset by a line of questions, take several deep breaths before answering (which you should be doing anyway), or ask if you can take a break.

9. Your testimony isn’t the end of the world, so keep a stiff upper lip

It’s not uncommon for witnesses to leave the witness stand feeling like they haven’t performed well. However, witnesses are very poor judges of their own performance, so don’t judge yourself harshly.

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