Daniel I. Small, The Daily Record Newswire
There are many moving parts to effective witness preparation. We often refer to the goals as the “Three Cs”: control, credibility and confidence.
Each of the “10 Rules” I’ve discussed in prior columns teaches a discipline that helps a witness establish control and credibility. Hopefully, they lead to confidence, but for many witnesses that can be a far more elusive goal. So much is being required of them; they may feel overwhelmed. It’s a downward spiral: Some degree of confidence is vital for control and credibility, and vice versa.
I was on the road preparing a witness a while ago and went back to my hotel struggling with the challenge. The 10 Rules were helpful guidance for her, but they weren’t building confidence. She needed more. It struck me that she needed rights. So I turned the rules into 10 affirmative rights. I printed them on a page with very formal typeface.
The next morning I told her that I had a reward for her hard work in preparation, and with flair and flourish I handed her “The Witness Bill of Rights.”
These are not legal “rights” formally set forth in some statute or case. Rather, they are based simply on fairness and common courtesy. I call them “rights” because the witness must demand them from the questioner, few of whom will give them up voluntarily.
1) The right to control the pace of testimony (Rule No. 1: Take your time)
This is the essential foundation for clear, fair, truthful testimony. Anything else is grotesquely unfair to the witness. Control the pace and slow down. If the questioner doesn’t like it, too bad.
2) The right to question the questioner (Rule No. 2: You are making a record)
Don’t let someone else put words in your witness’s mouth. Words can have different meanings — in jargon, in legalese and in English. If the witness isn’t 100 percent certain of, and comfortable with, how the questioner is using a word or phrase, he cannot answer the question.
3) The right to tell their story (Rule No. 3: Tell the truth)
It’s the witness’s truth, not the questioner’s. It includes good stuff, bad stuff, mistakes and rough edges. It does not include anything beyond what the witness saw, heard or did.
4) The right to be treated with respect (Rule No. 4: Be relentlessly polite)
A questioner’s garbage questions, sarcasm or nasty attitude need not be dignified. That’s what they want. Make sure your witness stays cool, calm, positive and relentlessly polite. Good testimony is the best revenge.
5) The right to clear and fair questions (Rule No. 5: Don’t answer a question you don’t understand)
Whatever the reason — clarity, comprehension or comfort — if a witness does not fully understand a question, she need only say, “Please rephrase the question.” Don’t let the questioner wiggle and squirm out of that discipline. Insist on clear and fair questions.
6) The right to forget (Rule No. 6: If you don’t remember, say so)
The long gap between the events in question is not a witness’s fault, nor is this a test at school, in which there is a penalty for forgetting. Just have the witness say, “I don’t recall” as often as needed.
7) The right to make clear what you don’t know (Rule No. 7: Don’t guess)
It’s “The Curse of The Intelligent Witness.” We have no experience with, or comfort in, making clear what a witness doesn’t know. Whether it’s factual details, inferences or hypotheticals, 95 percent sure isn’t good enough. If it’s not 100 percent certain, it’s still a guess.
8) The right to silence (Rule No. 8: Don’t volunteer)
Question, pause, answer, stop. That’s the rhythm of the witness environment. Make sure your witness doesn’t do the questioner’s job for him by helping him to ask the next question or fill in the gaps. Get comfortable with “uncomfortable silence.”
9) The right to see and read all documents (Rule No. 9: Be careful with documents and prior statements)
Credibility, language and context are the real issues; there is no magic to documents. If a witness didn’t write it and remember it, there is little to say about it. Have your witness ask to see it, read it carefully, ask for the question again, and consider whether it’s been quoted accurately and in context. Then he can consider whether there’s anything to add to what’s on paper.
10) The right to use your counsel (Rule No. 10: Use your counsel)
Impart to your witness the importance of understanding the rules, objections, privilege and breaks, so that he can use that knowledge to impose discipline and control on the process.
Amazingly enough, it worked. The process of thinking about the rules as rights helped to build my witness’s confidence and become a successful witness.
Every witness is different, and I don’t use the Witness Bill of Rights with each one — for some, the problem is too much confidence, not too little — however, I do continue to use it where I think it might help. Finding ways to help our witnesses build confidence in taking on this difficult and unnatural challenge can be one of the most important things you do for them.
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Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (4th Edition, 2014). He can be contacted at dan.small@hklaw.com.
