Do's and Don'ts - Being a Witness

Going to court for a criminal case or civil case can feel intimidating even when you are not the one on trial. Being called to provide witness testimony for a court case comes with rules for how to behave, help the process go smoothly, and avoid breaking any laws.

Being called as an expert witness in a court case is different from being a “fact witness” or providing your personal story about what you saw.

What To Do When Acting As a Witness In Court

A court process will have many steps. Parts of the process, such as opening statements and closing arguments, will likely happen when you are not in the room. Other steps, such as the discovery process, might require witness involvement.

While a legal proceeding can feel stressful, your main role as a witness is to tell your story or version of the events you witnessed. After that, you will participate in a direct examination by the attorney who called you to be a witness. Then the cross-examination will occur when the other attorney asks you questions. Both of these instances are your time to answer questions truthfully.

Subpoenas Need To Be Followed

You should take a subpoena seriously. It has the force of a court order. That doesn't mean that a judge has actually taken an interest in you. Subpoenas are usually prepared by an attorney for a party. However, a judge will be annoyed if you ignore a subpoena. The judge might decide to hold you in “contempt of court,” which can result in fines or even jail time.

Don’t Lie During Testimony

As a witness you need to be honest and forthcoming with your testimony. That doesn't mean spilling your guts out, but answering questions fairly and with intellectual honesty. Remember that perjury is a felony.

Give The Attorney All The Information

It is in your best interest to be honest and forthcoming with your attorney. Even if it is embarrassing or makes you feel guilty, it is better if your attorney knows the full story. Giving your attorney insufficient information can lead to problems down the road.

Give Your Attorney Time Before and During The Case

It is smart to make yourself available to your attorney for discussions regarding the case, including working on discovery and preparation for depositions and the trial.

Follow Courtroom Rules

It is important to follow an attorney's advice about how to behave in the deposition or the courtroom. Don't be afraid to ask them if something is appropriate. The attorney who called you as a witness will tell you what they want from you if you are deposed or have to take the stand in a trial.

Dress Appropriately In Court

As a witness you should dress as well as you comfortably can. A suit or work attire is often best, but you can simply dress as nicely as you can. If you are a police officer, military personnel, or cleric, your uniform is always appropriate. Your credibility as a witness is, to some small degree, judged by your clothing.

Provide Your Background Information

It is helpful to give the attorney everything in your relevant files, even if it is embarrassing or incriminating. If you have a criminal history or past civil lawsuit, the odds are that someone else does too.

What Not To Do When Acting As a Witness In Court

Don’t Guess — Provide Facts

A witness in court should never guess. You are in a deposition or on the stand to give facts, not to try to figure out what might have happened. Even if it makes you feel uncomfortable to say it, sometimes "I don't know" is the right answer.

Don’t Offer More Than You Are Asked

Try your best not to offer extra help. It is human nature to want to explain things so that your listener understands. Resist the impulse. It is your opponent's job to get the answers. It is your job to answer only the question asked, and not offer extra help.

Avoid Using Humor

When in court, it is not a good idea to try to be funny. Not everyone has the same sense of humor, and the courtroom is not the place for it. Your words are taken down by a court reporter to be read later. The court reporter does not take down facial expressions, gestures, or tones of voice. You can say "yes" in a sarcastic tone while making quotation marks with your fingers, but what will appear on the page is "yes.”

Avoid Distractions

Try your best not to get distracted in the courtroom. Pay attention to the questions being asked. If your attention wanders, you could make mistakes or misunderstand a question.

Avoid Answering Confusing Questions

It is not a good idea to answer a question you don't understand. It is smart to avoid questions that are:

• Vague
• Compounded ("Did you go to the store and who did you see and what did you say to them?")
• Assuming something that isn't true

Remember you always have the right to have the question restated or rephrased.

Ask For Needed Breaks During Appropriate Times

As a witness, you should not be afraid to ask for a break during a deposition. They can take hours, and it is inhuman to expect you to keep waiting if you need a restroom break.

Don’t Ask For Breaks During Trial

You should not ask for a break while you are in the courtroom during the trial. Breaks are entirely in the control of the judge, and asking for a break can be disruptive and make you look bad. Emergencies, emotional outbursts, or medical issues may cause the judge to call for a break.

Be a Sober Witness

You should not take any drugs or alcohol before you testify. Even things like cold medicine, prescription meds, or even more caffeine than you are used to can have an impact. You should also be careful what you eat before you testify. Being in court isn't the morning to skip breakfast if you usually have it.

Concerned About Being a Witness?

There are attorneys that specialize in appearing in court and making trials go smoothly. They will explain what they need from you, what to expect, and what the cross-examination might be like. An attorney who focuses on litigation will guide you through the process of being a witness.