Bradley M. Pinsky - April 15, 2021
First responders are frequently first on scene of serious incidents, meaning they may have exceptional insight into the situation. This access can sometimes put first responders in unique position of being called as witness in criminal and civil trials.
Be prepared to give deposition testimony and perhaps even to be called as a witness at a trial if you have observed any facts that either “side” finds to be important and/or in question.
Serving as a witness can be a nerve-racking experience, but it doesn’t have to be if you remain calm, tell the truth, and follow some simple tenets for testifying. [Download a 3x5 cheat sheet of these tips below]
Serving as a witness can be a nerve-wracking experience, but it doesn’t have to be if you remain calm, tell the truth, and follow some simple tenets for testifying.
Serving as a witness can be a nerve-wracking experience, but it doesn’t have to be if you remain calm, tell the truth, and follow some simple tenets for testifying. (Photo/Getty Images)
TIPS FOR THE WITNESS STAND
Understand that as a witness you will be challenged as to what you allegedly saw and heard. Therefore, you must present as confident, honest and unbiased.
In order to prepare for depositions or trial, review everything you ever wrote. By the time you are being examined, both attorneys have requested, received, reviewed and dissected everything you have authored. Do not let the attorneys know your reports better than you do.
Be prepared for exposure. If you are a key witness with “damning” testimony, your disciplinary history and personal life will come to light. If you have expressed any bias that could be relevant to sway your testimony, the attorneys or their investigators will have found it and will expose it.
If you expressed your opinions on social media, be prepared to answer for your comments and opinions. You can be assured that one of the two attorneys will make you look opinionated and biased.
You are not called as a witness to provide “opinion” or “expert” testimony. You are testifying to help reconstruct what occurred or to lend creditability to someone’s picture they are attempting to paint of the scene. You should not come across as taking a “side” or having a personal interest in the outcome.
If you do not know the answer to a question or you do not recall the answer, state as much. Never guess or even speculate. Attorneys will attempt to use your report to “refresh your recollection,” so hopefully your report was complete. If there are gaps or inconsistencies in the report, they will be uncovered at deposition and trial
If you are asked to speculate about something, do not speculate. State that you do not know and do not speculate.
Moreover, do not give an inch if you are not possibly wrong. For example, when asked “is it possible that …,” do not answer in the affirmative if it is not possible. Attorneys attempt to make the witnesses question their own beliefs “just a bit” in order to destroy their entire testimony.
You should know that serving as a credible witness is a true skill that few master, mostly due to inexperience. However, you need only conquer one skill in order to become proficient: Answer the question and only the question. Ask any trial attorney to offer their criticism of fact witnesses, and you will receive the same answer: Witnesses never answer just the question. Many witnesses are notorious “storytellers” and cannot answer a simple yes or no question with just a yes or no. Do not be that person! If you are asked a yes or no question, there are only two answers. You do not need to tell your life’s story.
Understand that attorneys believe that there are two sides to every story, and one attorney will attempt to have you state what you saw and heard while the other attorney will challenge your memory at every turn in order to reach a different conclusion. If the attorney can create even some doubt, they may win a few points with a judge or jury. Remain absolutely confident about what you absolutely recall and be honest about what you do not recall.
Also know that the more you say, the more you will be challenged on cross-examination. If you deviate from the facts, you will be taken to task. If you deviate from your written statement, you will be destroyed on cross-examination. Be consistent.
Don’t use “wiggle” words, such as “I think” or “I believe.” If you do, you will be made to look as though you did not actually pay attention. If you state “I guess,” then you will be accused of “guessing.” If you are asked if you are positive, then state that you are positive. Attorneys who do not like your testimony will do anything that they can to destroy your testimony – that is their sole job.
Finally, try to avoid emotions. If you have reached the point of depositions or trial, it is likely that you are involved in an emotional event, but you cannot let yourself be pulled into the emotional abyss of the incident. Emotional witnesses become targets for their opinions. Such witnesses tend to make the trial about themselves. Fact witnesses should remove themselves from the emotional overtones of the trial if they are going to remain credible. While your participation in the event could have been emotionally overwhelming, someone needs you to relay the facts without being distracted by your tears or anger.
Downloadable cheat sheet for first responders testifying in court