In our years of preparing witnesses, if there’s one thing we’ve learned, it’s this: there’s no one-size-fits-all approach. Each witness presents his or her own unique challenges. So although there are certain things we can and should do, it’s important to admit up front that witness preparation is both a science and an art. In other words, regardless of how well we prepare a particular witness, there’s no way of completely eliminating real-time blunders. The potential for things to go wrong is always with us. The challenge, therefore, is to control what is within our power to control and to manage everything else.
One aspect of witness preparation we can control, generally speaking, is who actually serves as a witness. Just because a person can be a witness doesn’t mean that person should be a witness. Conducting a risk-benefit analysis of prospective witnesses to determine whether a person presents more risk than potential benefit is required to effectively identify those witnesses who present very little risk as compared to those witnesses that present significant challenges. As a rule, we have to recognize the influence witnesses have in making and breaking cases and then choose accordingly.
As for the preparation itself, here are just a few suggestions to get you started:
- The attorney should know the case inside and out. This is imperative in ensuring there are no surprises for the witness, to include in the cross-examination. Skilled trial attorneys are able to anticipate what is likely to come up during the cross-examination.
- Conduct and record mock directs. This will help the witness to see whether or not their testimony is likely to have the kind of effect they want to have on the jurors.
- Always tell the truth. If the witness doesn’t know the answer to a particular question, he or she should be instructed to answer, “I don’t know.” Speculating is not an option and if attempted will only serve to damage the witness’ credibility.
- The witness should not feel the need to answer questions quickly. If a question is not completely understood, ask for clarification. Pause before answering. And again, tell the truth.
In short, although we cannot directly control everything about how a witness performs, we can manage things so as to give the witness every possible advantage. We can minimize risk. And in so doing, we can effectively prepare witnesses to testify in a court of law.