Tuesday, 06 April 2010 06:17

Info: Being a Witness - You could be called to testify at a trial.

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Being a Witness

You could be called to testify at a trial.

A witness is a person who provides oral evidence in a legal proceeding concerning some event or fact of which he has knowledge and which is crucial to the outcome of the proceeding. A witness may be asked to appear in court and many do so voluntarily, especially when they are friends or family members of one of the parties to the lawsuit.

In other cases, witnesses may be subpoenaed. A subpoena is an order from the court which commands a person to appear and testify. The person who receives the subpoena is legally obligated to obey it. Witnesses who fail to appear and testify after being subpoenaed may be subject to charges of contempt of court. In addition, a witness who appears but refuses to answer questions when under examination can also be held liable for contempt of court. It's true that under our Constitution, no witness can be forced to testify if the testimony would be self incriminating. But that only means that the witness can refuse to answer questions that might lead to criminal charges. Questions that might expose the witness to civil liability are permissible, and must be answered.

When you are called to testify at a deposition, you will probably meet at the offices of the lawyer who called you to testify. The attorney or attorneys for the other side will also be present, and a court reporter will also be present to record the questions and your answers. As the questioning proceeds, you will undoubtedly find that one side or the other will raise objections to the questions being asked. These are objections "for the record," and their merits will be decided later on by the judge. Once the objection has been made, you will be required to answer the question. If the objection is later upheld by the court, that question and your answer to it will be inadmissible for consideration in deciding the outcome of the case.

Witnesses are generally entitled by statute to receive compensation for their travel expenses and to certain minimal fees set up by state laws. A special class of witnesses are so-called "expert" witnesses, whose testimony includes information that requires special professional knowledge. These expert witnesses are generally allowed to receive extra compensation from the party that calls them to testify, in addition to the statutory witness fee. As a result, many expert witnesses are often attacked as "hired guns" willing to testify on behalf of anyone willing and able to pay their fees. In some cases, this criticism is well-justified. A jury generally has the right to know who is paying the fees of an expert witness, and to take that into consideration when evaluating the witness' testimony.

When a witness is called to court to testify, he or she will be required to swear that the answers he gives to the questions asked will be truthful. Witnesses who fail to testify truthfully can be prosecuted for perjury, a crime punishable in some states by up to ten years in prison.

The witness will first be examined by the attorneys for the party who called him to testify, and then cross examined by the attorney for the opposing party. During cross examination, the opposing party's attorney will attempt to impeach the witness, or question his or her truthfulness. Impeachment can include the introduction of evidence which shows that the witness should not be believed, including evidence about the character or reputation of the witness. For example, if the witness has previously been convicted of income tax evasion, the attorney cross-examining the witness may call this to the attention of the jury in his questioning, as a way to show that the witness has been less than truthful in the past. Or if your testimony contradicts something you said in an earlier deposition, the lawyer will draw this out in order to question your truthfulness, your memory, or both.

If you are ever called to appear as a witness at a deposition or in a trial, you will probably have a discussion with the lawyer calling you in advance of your appearance. During this meeting, the lawyer will review your testimony, give you advice about what to wear to court and how to conduct yourself during the examination and cross-examination, and tell you what questions he will ask and what questions to expect from the opposing attorney. As long as the lawyer doesn't try to influence you to change your answers or to avoid telling the truth, there's nothing illegal or unethical about this practice.

Most likely, the lawyer will give you the following advice about how to conduct yourself. You should speak clearly and distinctly in response to questions you are asked, but you should not offer additional information beyond that sought by the questioning attorney. Don't nod or shake your head as a response, since your answers must be recorded by the court reporter.

In addition, you should not try to anticipate an attorney's question, but wait until he has finished asking it before you begin your answer. After the attorney finishes the question, it is a good idea to hesitate for a moment before answering so that opposing counsel may have the opportunity to raise any objections, such as that the question is irrelevant, or calls for hearsay.

When each side has completed its questions, you should wait until the judge tells you that you are excused before you get up from the jury box. By being a courteous witness, you can improve the credibility of your testimony in the eyes of the court, and that can be of great help to the party on whose behalf you are testifying.
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