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Witness Preparation: Teaching Lay Witnesses to How to Master the Challenges of Testifying in Court

by Susan E. Jones, Ph. D.


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Introduction

At trial, cases often hinge on jurors' perceptions of key witnesses. The impression a witness makes can have a decisive impact on the outcome of a trial. Yet, all too often, witnesses are given only cursory help preparing to testify. Frequently an associate is assigned the task on the eve of trial. Unfortunately, witnesses who fail to fully understand the proceedings or the significance of each aspect of their testimony often become nervous and confused; with potentially disastrous consequences.

Witness preparation need not be an overwhelming task. This article describes techniques for witness preparation appropriate for both lay and expert witnesses.

Stages of Witness Preparation

Stage I


Witness preparation for lay witnesses can be isolated into three stages. Stage I involves orienting the witness to the courtroom; including explaining the roles of the courtroom participants and the basic rules of evidence involved in lay testimony.

It is important to provide a prospective witness with a review of the ground rules for direct and cross examination as well as an explanation of the objections likely to be made. Essentially, the attorney should educate the witness so that he or she understands the nature of the proceedings and is less likely to be startled during direct or cross examination. Such distractions negatively impact a witness, and are needless if adequately addressed prior to trial.

Helping a witness understand the overt and covert reasons for objections allows them to gain confidence in their testimony. When anticipated objections do arise they feel knowledgeable and confident; significant factors in reducing situational anxiety associated with being "on stage."

It is easy to neglect this orientation stage, as it almost seems trite. But from the witness's perspective, it is not. For witnesses who have some familiarity with court proceedings orientation is often a refreshing review, and new information, inevitably, is imparted. For those for whom the information is completely new, an orientation is helpful and appreciated. Many witnesses are quite embarrassed to admit that they are unfamiliar with court proceedings and will not ask the fundamental questions. Thus it is important that the attorney matter-of-factly, but effectively, review fundamentals of the courtroom with all witnesses.


Stage II


In the second stage, attention is directed to the content of the witness's testimony. Individuals process information best when it's approached from the global to the specific. When witnesses are provided with an overview and then with details to the appropriate elements of the outline, they are better able to understand the overall nature of their testimony. It is important that the witness has a conceptual understanding of the objectives of their testimony. Merely going over a witness's testimony question by question, in the absence of an overall context, results in witnesses who become confused and unable to respond effectively during direct and or cross examination. By understanding the case themes and how each element of their testimony is related to a theme, witnesses are better able be effective on the witness stand.

  1. 1. Introduction, Stage I & Stage II
  2. 2. Stage III