Are you testifying in an upcoming trial and wanting to know what to expect? If you haven’t testified before or it’s been some time since you have, here are some important points to review prior to giving your evidence in court.
Prior to testifying:
Prior to testifying, the lawyer for the party you are testifying for will call you to ask you questions about your evidence. What you have witnessed and what you can prove. The lawyer will then request that you send evidence to support your testimony, which will be entered as exhibits if you are ultimately called to testify. These can be photos, text messages, emails or documents, dependent on your evidence. It is important that you are full and frank with the lawyer at this stage, as if your evidence is not helpful, it is important that this be concluded prior to going any further. Answer the questions asked of you as you would under oath, honestly and accurately.
Be honest with your answers. If you don’t know the answer, it is okay to say, I am not sure, or I would be guessing. Always avoid guessing or speculation, remember, the judge will be weighing how reliable and credible your evidence is.
Avoid absolutes (like “never,” “always,” “every time”). These can be used to draw your credibility into question.
Try to answer the question with as much detail as you can remember, but if you cannot remember information, such as a date, do not guess. Just state you cannot remember.
Do not speculate, be truthful in your answers. Remember that your consistency will be used to judge your credibility. If you contradict yourself further along in trial, it will reflect poorly on you.
Only answer the question asked of you. If the lawyer requires more information, they will ask another question that touches on that information.
Speak clearly and use your own words.
It is okay to ask for clarification if you do not understand the question.
Try not to give your opinions about matters, but just the information that you have yourself witnessed. Remember you can only testify to what you have personally witnessed. Hearsay is when you are testifying to something you have not personally witnessed and we try to avoid this, as it will be objected to.
If you are going to use adjectives to describe something, be prepared to provide examples. For example: if you say “he is a great father,” you will be asked “please tell my why you think he is a great father.” Saying he or she is a great parent is an opinion, descriptions as to what you have witnessed of the person as a parent is the evidence the judge is looking for.
Remember you are always speaking to the court/the judge when answering questions, not the lawyers.
Respond orally to all questions, if you nod your head, it will not be on the record, so it is important that you answer with words and not gestures.
Do not volunteer information, only answer questions being asked of you.
Feel free to take as much time as you need to consider your answer! It is always okay to ask for a minute.
While testifying, you are welcome to have a glass of water with you if needed.
In most circumstances it is okay to refer to notes or records that you have while testifying, however, if you are going to do so, it is important that you tell the lawyer first, as these notes will have to be disclosed to the other side in advance.
When you are done your evidence you will be excused by the court. It is important that you do not discuss your evidence when any other witness, or anyone that may be called as a witness in the trial. Until the trial is complete, we can never be certain as to whether or not a rebuttal witness will be called and so I ask that you not discuss your evidence with anyone until after the trial. Similarly, it is important that you don’t speak to any of the other witnesses about their evidence prior to you testifying. Be aware that the opposing counsel can ask you if you have under oath and if you have, your evidence will be given little to no weight.
When under cross examination, always be courteous and answer the question. Failing to answer the question could lead to adverse inference.
Do not be argumentative during cross-examination.
Try to give short answers to the questions asked.
Only answer the question being asked of you.
As above, do not guess information if you do not know. Just state that you do not know.
Something to note: in cross-examination, they are allowed to ask “yes or no” questions of you. Feel free to end your statement with a simple “yes or no.”
In Person (majority of trials now)
If you are giving evidence in person, please dress appropriately for court, avoid shirts with wording that may be inappropriate and dress in “office” attire or business casual.
When you are asked to enter the courtroom, you will go to the witness box and have a seat and wait for the court clerk to swear you in. You can swear on a bible or any religious book of your choice or make an affirmation if you are not religious, there are all equally important. It is important that you tell the truth when under oath, it is a criminal offence to lie under oath.
After you are done being questioned by both lawyers, you will be excused.
Zoom (if applicable):
The trial may be conducted online through Zoom. When joining Zoom, you will be put in a waiting room and will be put in the court room when it is your turn to testify.
Please practice using Zoom the night before your day to testify, in order to develop an understanding of the program.
Even though you are on Zoom, behave as if you are in a formal courtroom setting. Make sure you are in a private, quiet area with good internet.
Remember you are in court; it is important to dress appropriately. Even while on Zoom, please wear business casual, such as a collared shirt or blouse with a jacket overtop, if possible. Avoid clothing with swear words, slang or anything inappropriate.
While testifying over zoom, you are presented with the same option as in court with swearing on a religious book of your choice or affirming. If it is your preference to swear on a religious book, as a bible or Quran, please have one next to you and ready to hold up and swear on.