Giving evidence in court
If you are called to give evidence in court, it may be helpful to understand what’s involved. There are usually two stages to giving evidence: first, the witness will be asked to give a statement in writing, and later on – perhaps even years later – they may be asked to give evidence in court. Usually, someone will write out the statement for the witness based on a series of questions. It is very important that this stage is handled carefully. It is easy to get facts wrong. A witness should never be put under pressure to produce one answer in favour of another. All the court is interested in is what the witness saw or heard – or experienced personally in some way: the court is not usually interested in the witness’ opinion.
Witnesses have to remember that their first duty is not to their family or their friends or business associates, but to the court. A witness who is partisan or biased is of no help to the court at all. The court is relying on the witness to tell the truth to the best of their recollection.
In court, the witness will be asked questions based on their statement. There are two parts to this questioning process:
the party that called the witness is interested in confirming the witness’ statement;
the other party is interested in discrediting the witness’ statement.
The first part is called the ‘examination in chief’. The party calling the witness wants to establish its version of events. It is trying to persuade the court that this happened, not that, that Person A did such-and-such, and not so-and-so.
The second part is called ‘cross-examination’. The opposing party wants to demonstrate one or more of the following:
the witness has forgotten exactly what happened;
the witness is wrong about some of the information;
the witness is not truthful; or
regardless of the evidence, there is some other reason why the court should not believe the witness.
One of the things that crossexamining counsel is trying to do is to see whether the evidence being given from the witness box is different from the witness’ written statement. Counsel is looking for inconsistencies.
Being crossexamined can be a lonely experience. Many witnesses will feel under attack, but it is important to understand the process. In cross-examination, the lawyer does not ask questions, s/he makes statements, the only possible answer to which is usually ‘yes’ or ‘no’. So, under crossexamination, counsel will not ask:
‘Did you go to town on Wednesday?’
Rather, counsel will simply state: ‘You went to town on Wednesday’.
Counsel does not need to ask if you went to town on Wednesday – it’s in your statement. Counsel might put the point another way:
‘You say you went to town on Wednesday’.
In other words, the witness is being asked to confirm facts which correspond to the version of events the lawyer is trying to promote. However, the witness does not always have to answer ‘yes’ or ‘no’. If something needs explaining, there is nothing to stop the witness asking the judge if they are allowed to explain something more fully. Remember, the judge outranks the lawyer. A witness can also appeal to a judge if the lawyer tries to ask two questions in one. There is nothing wrong with the witness saying to the judge: ‘Your honour, counsel has asked me two questions – which one should I answer’ or perhaps even ‘Could your honour ask counsel to ask one question at a time’.
To summarise, here are five tips to ensure that a witness gives the best possible quality evidence. The witness should:
not allow themselves to feel rushed if the lawyer seems to be dictating a fast pace of questions, but remain calm and listen to each question carefully;
appeal to the judge if they feel something needs more explanation;
be prepared to say ‘I don’t know’ rather than attempt to answer a question whose answer they do not know;
ask counsel to rephrase a question whose meaning is not clear to them;
take their time answering questions.