21 Testifying at Trial

Overview

Every day, thousands of people–citizens and professionals, alike–are called to testify at trial.

When preparing to testify in court, it is not enough to decide that you will tell the truth, the whole truth, and nothing but the truth. Testifying in court does, of course, require your honesty. Your responsibilities, however, begin before you take the stand. As a witness, you have a responsibility to prepare before you arrive at court and a duty to present yourself as a credible, trustworthy person once you’re there.

As easy as this sounds, there are a few factors that can make this process feel overwhelming. Remember, our legal system is adversarial. That means that, in a criminal trial, the crown attorney and defense attorney are “going against” each other in pursuit of justice. In a criminal trial, it is the job of defense attorney to raise reasonable doubt about the guilt of the accused. This could involve testing your general reliability as a witness and calling the credibility of your account into question.

Even in a lower-stakes civil trial, different parties will inevitably have different perspectives. You owe it to to all involved to be as prepared, respectable, and reliable as possible in delivering what you know to be true.

Before Testifying

• Refresh your memory the day before you attend court:
  • review any personal notes, texts, or emails that you wrote close to the time of the event to refresh your memory;
  • read over any statements that you gave to police at the time to make sure that your testimony is consistent with what you told authorities.
• Arrive to court a half hour early:
  • plan to be in court all day: it is not an appointment that gets scheduled to a specific hour;
  • bring a lunch, water bottle, coffee, and money for any other snacks you might need throughout the day.
• First impressions matter, so dress appropriately:
  • ensure that your clothes are neat, clean, and formal;
  • avoid hoodies, hats, gym clothes, overly revealing clothing;
  • avoid any offensive designs, logos, or slogans.
• Commit to telling the truth:
  • on the stand, you’ll be asked to swear an oath on a holy book of your choosing; or
  • affirm that you’ll tell the truth (without a religious text).

When Testifying

• Speak slowly and clearly in your own words:
  • you will not be allowed to read from a page (not even from your official Witness Statement);
  • even officers who are approved to consult their Notebooks cannot read directly from those notes;
  • avoid perfectly memorized statements: they sound phony.
• Avoid agreeing with overly general definitive statements:
  • if asked by an attorney whether you spoke about anything else, do not reply “We spoke about nothing else”;
  • instead, say something like: “That’s all I recall of the conversation.”
• If you don’t understand a question, say so!
  • you are allowed to ask for a question to be repeated or rephrased;
• If you don’t know, don’t guess!
  • this is especially true of quantifiable measurements like speed, distance, physical descriptions, etc.;
  • a defense attorney might encourage you to guess, and then produce hard measurements to undermine your credibility.
• Don’t agree with leading questions just to sound agreeable or co-operative:
  • the question may have implications that you don’t see coming;
  • ex. an attorney might use a nice voice to ask you, “Would you say you were a little distracted?”, and if you say “Yes, maybe a little,” they might exaggerate that answer to imply that you are not a credible source of information.
• If you make a mistake, correct yourself!
  • everyone makes small mistakes: it shows responsibility if you are willing to correct yourself;
  • use an expression like: “May I correct something I said earlier?”

Behaviours to Avoid

• Lie under oath
• Chew gum
• Make jokes / be sarcastic
• Show frustration or anger
• Talk just to fill the silence
• Speculate
• Make faces / speak to anyone in the room other than the attorneys or judge
• Bring any notes that you don’t want the judge or other lawyers seeing

References

“Tips for Testifying” (2022, Dec. 20). Jill Dubrick, Director, Ontario Victim Services, Victims and Vulnerable Persons Division. Ministry of the Attorney General. Email Correspondence Reference #: M-2022-11624

United States Department of Justice. (2020, Feb. 5). “Tips for Testifying” Offices of the United States Attorneys’ Office. District of Alaska. https://www.justice.gov/usao-ak/tips-testifying