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What makes a good witness in court?

witness

After every trial, I try and reflect on what went well, where I can improve, how I can better prepare a client to testify or about the process and if there is anything to change for my preparation, presentation or investigation. After years of trying cases to juries all over the state of Oregon, watching trials in the various courthouses and reading books about trial work; I believe that jurors care deeply about witness testimony. Honesty is essential and required when testifying but there are tips that an experienced trial lawyer can help the witness testify truthfully and powerfully. A witness can either help build your client’s case, brake the other side’s case down or both.

Jurors also care about non-verbal testimony too. Non-verbal testimony includes the lawyer, witnesses and client’s demeanor during the trial. The jurors assessment of the witnesses’ credibility begins from their first impression of the witness. Jurors expect the client to listen without facial expressions showing they disagree with a witness, to allow the other attorney to present their case, wear clothing that is appropriate for court (no shorts, hat, jacket, no slogans or polarizing statements). Jurors expect a respectful tone and demeanor when answering questions. If the lawyer is being a jerk in how they ask the witness a question, it is an opportunity to show that the witness will answer questions no matter how rude or condescending the lawyer is. And my experience is that jurors don’t like lawyers that are rude.

It would be great if a witness could simply be told that if they testify truthful they will be believed. In reality, honesty is important, but a good witness also explains their experience in a way that a juror can understand, relate to and visualize. An honest witness does this by answering the specific question that was asked. When the witness evades the attorney’s question
(as commonly happens on cross examination) the jury will wonder if the witness is being honest why won’t they answer the question. Politicians call it a pivot when they don’t answer questions and I think it is a big reason that many don’t find politicians to be honest.

If jurors have a vivid picture or story of what happened, it is easier for the jury to remember, understand and relate. The attorney can help guide the witness to give the types of details that create a vivid picture such as describing the event as if it was happening at that moment. Moving through each detail with small steps without moving right to the conclusion. The key is giving enough information that the jury comes to that conclusion based on the facts. A good witness will describe what happened with sensory details such as what they heard, felt, saw, smelled. For example a witness could say it was cold outside but wouldn’t it be better for the witness to describe the warm clothes they were wearing (hat, winter jacket, gloves), that it was so cold they could see their breath and then describe how their face or nose felt due to the cold? A good witness will have met with the lawyer so the lawyer knows enough details to have the juror describe the event in a compelling way on the witness stand. The lawyer must put in a significant amount of time to think about what questions the opposing attorney will ask, how the witness can help his/her client’s case and how it affects the presentation of evidence for other parts of the trial.
What happens at the first court appearance on a criminal case?

The first appearance is an arraignment. Arraignment is a fancy way of saying brief court appearance where the client will learn what the current criminal charges are at that time. The client doesn’t do much at an arraignment. Most courts in Oregon will allow the attorney to appear on behalf of the client at the arraignment for all misdemeanor charges. This depends on jurisdiction but if the attorney can appear for the client, it saves the client the time of going to a court appearance where not much happens. In Oregon, the police recommend charges by giving an arrested person a notice to appear in court. The prosecutor or District Attorney assigned to the case reviews the evidence and decides on the charges if it is a misdemeanor. This allows the prosecutor or District Attorney to add, subtract, change or keep the same misdemeanor charges as what the police gave to the arrested person. If the case is a felony, or the case is filed in a jurisdiction that does not allow a waiver of appearance then the client will need to appear at the arraignment. Sometimes the first appearance at an arraignment is set to reschedule another appearance after the prosecutor has brought the case to grand jury or to schedule a preliminary hearing on a felony case. If you are cited to appear in court, it is a good idea to consult with a lawyer before appearing in court. If you appear in court on the case there should not be any questions asked of the client about what happened. If a person needs a court appointed lawyer, that process is initiated at arraignment. If a person needs more time to meet/hire a lawyer, the court will likely provide a week or more to allow that to happen. Some jurisdictions require a plea at the arraignment. The plea entered is not guilty but that simply allows the client/lawyer to receive the police report or other evidence to evaluate the case. A not guilty plea in the jurisdictions that require a plea at arraignment can be changed at a later time if the case is resolved through plea negotiations. After arraignment, the attorney can request discovery, meaning ask for the evidence such as the police report, video/audio recordings, photos etc…

Often times, clients will ask if they need to a lawyer at arraignment. It might be convenient but choosing the right lawyer is important so don’t rush to hire a lawyer simply because that lawyer is available to appear at the arraignment. You want to hire the right lawyer and best lawyer for your case rather than be forced to hire a lawyer as quickly as possible. If the court allows a waiver of appearance at arraignment, it is a good idea to let the lawyer appear on your behalf. The arraignment is not a time where you can make a good impression because it is an extremely brief appearance before a busy judge who is trying to get through the docket as efficiently as possible. If you do appear in court, it is important not to talk about your case, dress appropriately and understand that there will likely be more meaningful court appearances in the future.

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