Daniel I. Small, The Daily Record Newswire
No witness takes an oath simply to tell the truth. The oath at the beginning of testimony is to tell “the truth, the whole truth, and nothing but the truth.”
Like many things in our normal lives, we tend to blur it all together into one image. But like many things in the precise and artificial world of being a witness, we need to examine the entire statement and make sure that we understand and consider all three parts. There are, after all, three parts to the oath for good reason. In this column, we will examine the first.
The truth
Witnesses should understand that this is not only a rule of law — it’s a rule of self-preservation. Lying or stretching the truth as a witness may not only be a crime, it’s also foolish.
Assume that the questioner is more experienced than you think, and that his experience includes the ability to make a witness who is playing fast and loose with the truth very uncomfortable.
If a questioner suspects that a witness is not being honest, he can take a variety of approaches to try to catch that witness in a lie. The consequences of lying are often worse than whatever it was the questioner was asking about in the first place. It’s what we used to call the “Watergate Syndrome” (perhaps now the “Martha Stewart Syndrome”): people getting caught and prosecuted for covering up, not for the initial subject matter. Don’t do it. Tell the truth.
‘Oh, what the heck!’
As the questioning drags on, as a witness is asked about the same things over and over, as the questioner makes clear he doesn’t like or doesn’t believe the witness’s version, there is a natural (and understandable) tendency for the witness to say, “Oh, what the heck,” and give the questioner a little more of what he seems to want.
After all, maybe the question is only slightly wrong, maybe someone else could see it that way, maybe if the witness just gives in a little the questioner will move on already!
Unfortunately, all those “maybes” are misguided and dangerous for a witness to entertain.
First, when one is under oath and every word is taken down and picked apart, there is no such thing as “slightly wrong.” If something is not completely and precisely true, don’t say it (or agree with it); it will only cause more problems.
Second, it doesn’t matter what someone else’s view of the matter might be or whether that view is reasonable. That mysterious “other person” is not the witness.
Finally, “giving them what they want” will not make questioners go away. They will only want more.
There are no shortcuts here. What is true in mathematics is equally true in this process:
The shortest distance between two points is a straight line. The truth is a narrow, precise line. Make sure that no matter how hard someone tries to get a witness to veer off that line, the witness will resist the “oh, what the heck” tendency.
Once you’re off track it becomes harder and harder to get back on. No matter how many times a question is asked, and in however many different ways, the truth — and truthful answer — must remain the same.
Mistakes: normal, helpful
Everyone accepts that nobody’s perfect, yet in a witness environment, many people tend to forget it.
The setting, the oath and the court reporter all combine to make witnesses feel that they cannot make mistakes. They feel like someone is grading them, and any mistake will hurt their grades. So when they inevitably make a mistake, they panic and either ignore it or try to mold and shape it, like clay, into something else.
Tell your witness: Don’t do it. When you make a mistake, which every witness does at some point, keep two things in mind:
First, remember the “Law of Holes”: When you’re in a hole, stop digging! Trying to work around a mistake will ultimately only make it worse. As soon as you realize you made a mistake, stop and fix it.
There are lots of ways to do that, but one of the easiest and most effective is the simple word “clarity.” The goal is a clear and accurate record, so stop and clarify:
• something you remembered wrong;
• something you were confused about;
• a poor choice of words, by you or the questioner; and/or
• an incomplete or distorted answer.
Second, don’t worry about it. This is not school, you’re not being graded and should not expect to be perfect. More important, Juror No. 6 doesn’t expect it either. He’s nervous, too. He knows he would make mistakes were he in the witness box, and he does not want robots talking to him. A mistake draws a witness closer to him, not farther away.
If a witness makes an honest mistake and honestly tries to clarify it, any attempt by the questioner to make much ado about nothing will reflect poorly on the questioner, not on the witness.
My favorite quote about mistakes is by Elbert Hubbard, from “The Notebook”:
“The greatest mistake you can make in life is to be continually fearing you will make one.”
It can be critical to a witness’s success that the preparation process takes away some of that fear.
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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” (3rd Edition, 2009). He can be contacted at dan.small@hklaw.com.
