Telling the Truth on the Witness Stand

by Jamison Koehler on January 19, 2010

I’ve complained about “thin-skinned prosecutors,” lying cops, and “too clever by half” prosecution witnesses.  In fairness, I should say that I have also had experience with either clients or friends and family members ready to testify for the clients who, in a criminal trial, might also consider embellishing the truth on the witness stand.

Your mother always told you to tell the truth.  Your lawyer tells you the exact same thing.  It’s not because telling the truth is the noble thing to do.  It’s because telling the truth is the best way to win your case.

I assume that you have been completely honest with your lawyer. You have told him the good facts.  And you have also told him the bad facts.  Your lawyer has then factored everything you have told him into his strategy for the case.  If he doesn’t like what you have to say, your lawyer won’t call you to the stand.  Your lawyer certainly won’t be asking you to testify with the hope that the prosecution will somehow miss the bad fact on cross-examination.  So, if he has asked you to testify, he has obviously concluded that the good parts about your testimony will substantially outweigh the bad.

Once called to the stand by your lawyer, your job is to tell the story exactly as you told it to your lawyer earlier.  That includes the bad facts.  And it includes acknowledging when you don’t know or just can’t remember.

Bad facts can sometimes be helpful for the defense.  It shows the judge or the jury that you are telling truth.  It enhances your credibility.  It makes everything else you have testified to, including the good facts, much more believable.  At the very least, it prevents your testimony – and your credibility —  from being impeached with contrary evidence the prosecutor might have up her sleeve.

After listening to the prosecution’s case and then being called by your lawyer to testify, don’t surprise your lawyer by changing your story or embellishing your testimony no matter how much you think it will help you.  Believe me, and I speak from bitter experience, it won’t!  Again, your lawyer would not have called you if he or she were concerned about this bad fact just as you told it to him earlier. And he certainly wouldn’t have called you to the stand if he thought you were going to lie or change your story.

When you get the question that will elicit the bad fact, that question that you’ve been dreading, don’t look at your lawyer as if to seek guidance on whether or not to tell the truth.  That look will not be lost on the judge or jury.  It will also give the bad fact more emphasis than it deserves.  Just tell the truth.

I also love it when my witnesses respond that they don’t know or that they just can’t remember.  This too enhances credibility.  Nobody sees or remembers everything.  If you don’t remember, say so!  It’s when you embellish or speculate on what probably happened (though in fact you didn’t really see it), that’s when you get yourself and your defense into trouble.

Here’s a story to illustrate, though, again, I can’t resist picking on a prosecution witness.

The woman was the key eyewitness for the prosecution in an assault case.   Who knows, maybe she was there that night. She might even have witnessed the thing.  But she made the mistake many prosecution witnesses – particularly police officers – make:  she decided she couldn’t just leave it to the prosecution to make out the case against my client.  She had to do this herself.

Most of her testimony was consistent with the rest of the prosecution’s case.  It was late at night and dark, and there were many people out on the street as a popular nightclub let out.  All the prosecution needed her to say was that she saw my client hit the complaining witness in the head with a beer bottle during an argument.  This would confirm the story the complaining witness had already testified.  This she did.  But she couldn’t let it go at that.  She couldn’t resist the temptation to embellish.

The complaining witness had already acknowledged during his testimony that he had, in retaliation, also struck my client.  Both men had been injured during the altercation.  But, because of sequestration, this woman had not been present in the room and therefore had not heard the rest of the prosecution’s evidence.

Q:  So, you had a clear view of the whole thing?

A:  Yes, very clear.

Q:  Nothing obstructed your view in any way?

A:  No.  Not at all.

Q:  And you saw the whole thing from beginning to end?

A:  Yes.

Q:  From the beginning of the fight until the police arrived?

A:  Yes.

Q:  Did you ever see the complaining witness strike my client?

A:  No.  Absolutely not.

Now, I wasn’t there that night.  Nor were most people in the courtroom.  But, having heard the complaining witness himself already acknowledge that, yes, he had hit my client in self-defense, everyone sitting there in the courtroom knew that this woman was not being entirely honest. Either that or the complaining witness was lying.

How should she have testified?  Again, I wasn’t there on the night of the alleged assault.  But let’s do the testimony again to show a more credible story, which I suspect would also be much closer to the actual truth.  Remember that she has already testified that she saw my client hit the complaining witness in the head with a beer bottle which, combined with the complaining witness’ testimony, was enough to make out the elements of assault.

Q:  So, you had a clear view of the whole thing?

A:  Not really.  It was dark and the street was crowded with people pushing and shoving.

Q:  Nothing obstructed your view in any way?

A:  Like I said, it was dark and there were lots of people on the street that night.  But I did see the defendant hitting the complaining witness with the beer bottle.

Q:  And you saw the whole thing from beginning to end?

A:  No.  I don’t know what happened before I came out of the nightclub.  But I saw these two guys talking to each other and then your client attacked the other guy with the beer bottle.

Q:  And you were still there when the police arrived?

A:  No.  People were pushing and screaming.  My boyfriend grabbed my arm and we  got out of there as soon as we could.  I don’t know what happened after I left.

Credible.  Believable.  People mistakenly believe that, in order to be believed, they need to have perfect recall and to have seen everything perfectly clearly. This is just not true.  It is in fact, I believe, quite the opposite.

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