Witness taking an oath in the court room
Whether you are the witness in your own trial or called to testify on behalf of another, it is vital to the case that your testimony comes across as credible. Without credible witnesses, the case quickly falls apart.
What makes a credible witness?
A credible witness is a witness who comes across as competent and worthy of belief. The witness’ testimony is assumed to be more than likely true due to his or her experience, knowledge, training, and sense of honesty. The judge and jurors will use these factors and their own experience to determine whether they believe if the witness is credible.
A witness who testifies definitively to an event and the behavior of others at the event but can’t remember their own behavior is not credible. Online statements and photos posted online that contradict a witness’ testimony at trial place the witness’ testimony into question. Refusing to answer or giving a “no comment” answer calls the witnesses’ credibility into question. Stating that two contradictory facts are both true also discredits the witness’ testimony.
Who determines who is a credible witness in court?
The judge or jury must determine in every case, with respect to every witness, whether the witness is credible in his or her testimony. The jurors are the finders of fact in a jury trial. The judge is the finder of fact in a bench trial. Most family court cases in the United States are bench trials except in the state of Texas where a jury trial may be requested in a divorce case.
Tips for Testifying at trial:
The US Attorney’s Office, Middle District Pennsylvania, provides the following tips for witness testimony:
Refresh Your Memory: Beware of suggestions by attorneys in leading questions (questions asked on cross examination). Do not agree with their statements of fact unless you actually agree.
Speak In Your Own Words: Don’t memorize your testimony. It makes you sound “canned” or rote and therefore unconvincing.
Appearance Is Important: A neat appearance and proper dress in court are important. Dress “credibly” meaning dress like you are someone who can be believed. Neutral colors are best.
Be A Responsible Witness: When you are called into court for any reason, be serious, avoid laughing, fidgeting, or making facial “comments.”
Tell the Truth: Do not stop to figure out whether your answer will help or hurt either side. Just answer the questions to the best of your memory and tell the truth.
Do Not Exaggerate: Don’t make overly broad statements that you may have to correct or statements that include the word “NEVER.” Be particularly careful in responding to a question that begins, “Wouldn’t you agree that…?” The explanation should be in your own words. Do not allow an attorney to put words in your mouth or frame how you remember something.
Listen Carefully To Avoid Confusion: The attorney who called you to the stand will ask you open ended (who, what, where, when, why) or direct questions as part of your direct examination.” When you are questioned by the opposing attorney, you will be asked “leading questions”, questions that contain the answer the attorney wants embedded in the question. This is cross-examination. The basic purpose of direct examination is for you to tell the judge your story—what you know. The purpose of cross examination is to raise doubts about the accuracy of your testimony.
Do Not Lose Your Temper: Keep your temper. Always be courteous, even if the attorney questioning you appears discourteous.
Correct Your Mistakes: If your answer was not correctly stated, correct it immediately. If your answer was not clear, clarify it immediately. It is better to correct a mistake yourself than to have the attorney discover an error in your testimony.
Do Not Volunteer Information: Answer ONLY the questions asked of you. Do not volunteer information that is not actually asked for.
Be Positive and Confident: Give positive, definite answers when at all possible. Avoid saying, “I think”, “I believe”, or “In my opinion” if you can answer positively. If you do not know the answer, then say so. Don’t make up an answer.
The courtroom is like a fishbowl: you can always be seen by the judge and the jury
You are being watched at all times and need to be aware of how you are presenting yourself, your facial reactions, your appearance and your body language. Folded arms signal hostility.
Anyone who takes the stand is likely to influence the opinion of the judge. On some subconscious level we are all making judgments about those around us based on silent cues: deciding whether they are reliable, believable, trustworthy, out for self-aggrandizement.
How to dress credibly in court
It can be a very scary and intimidating experience to stand in front of a courtroom. Clothes can be a source of strength and security. They can also create an impression you may not want to give.
Vanessa Friedman, NYTimes fashion editor, answers the question, “What Should I Wear to Testify in Court?”. Ms. Friedman also wrote about E. Jean’s Carroll’s clothing at trial, “Carroll, Clothes and Credibility” for which Ms. Carroll used a stylist and dressed in neutral tones. Amber Heard’s pinstriped suiting and 1930s updos during the Depp-Heard defamation trial, as well as Johnny Depp’s three-piece suits and tightly controlled ponytails were newsworthy. Scrutiny was given to Elizabeth Holmes’s courtroom attire when she traded her black tech-wizard turtlenecks for bland blazers and skirts during her fraud trial. Gwyneth Paltrow’s outfits at her Utah ski resort trial were reported on.
Most lawyers advise being as neutral as possible when it comes to your image in a courtroom; you want the focus to be on what you say, not what you are wearing: no bright colors, loud prints, jangling decorations or clothes that require endless tugging, adjusting or other sort of fiddling. The same approach goes for accessories, especially shoes and jewelry.
A witness dressed in a clownlike costume and a female dressed in a sunshine yellow dress with big, puffy sleeves resembling “Big Bird” immediately distracted from their testimony and their credibility. A male litigant wearing a double breasted wide lapeled “gangster-style” suit with an ascot and a large sunflower in his lapel, spats and a walking cane distracted from the seriousness of his position at trial and came across as the Batman criminal, “Joker”.
A small detail can send an unwanted signal—an American flag lapel pin can signify a political affiliation or a visible tattoo can suggest membership to a group or gang. You should consider that accessories shape the perception of who you are and can frame your testimony about factual events. You are not a witness as yourself but a witness to establish certain facts, credibly.
Measuring Witness Credibility: How did the witness appear at trial?
The American Bar Association suggests the following to measure credibility in a witness:
1. How did the witness look, act, and speak while testifying? Did they exude confidence in what they were saying? Were they dressed appropriately? Did they make eye contact and give clear and direct answers or were they avoiding the question?
2. How well did the witness describe what they heard, saw, smelled, in court? How well did the witness remember and describe what happened? They need to be able to explain what they know and how they know it. Even if they cannot remember perfectly, they should be confident in explaining what they can remember and be direct and honest about it.
3. People often forget things or make mistakes in what they remember. Testimony is not untrue just because it differs from other testimony. People are not computers and do not always remember things perfectly. The witness should not be seem as dissembling by over-compensating for having an imperfect memory.
4. What was the witness’s attitude toward this case or about giving testimony? The witness should be engaged and ready to tell his or her story to the court. A witness who does not want to testify or has a dismissive attitude or seems inconvenienced about having to be in court, is not a good, credible witness.
When you are a witness for yourself or someone else:
Remember that everything about you matters -from your physical appearance, how you behave in court, to what you actually say and how you say it. It is extremely important to your case that the judge or the jury find you credible. If you are not credible, everything you say can be disregarded.
