The only thing more challenging than a witness who’s difficult to control is a witness with major credibility issues (and of course, there’s the witness with both concerns). We’ll be honest, we love witnesses with credibility issues… when we get to cross-examine them. But sometimes, your case relies on calling a witness whose relationship with the truth leaves something to be desired. How can your lawyers get a jury to believe a witness who comes across as dishonest or evasive? Or worse, has a proven record of being a liar? And how can your lawyers keep that witness from getting beaten like a piñata on cross-examination?
Below are four tips for witness preparation, two of which apply to all witnesses and two others that are especially important for witnesses with credibility issues.
Limiting Out of Court Statements
If you’ve ever wondered why lawyers tell their clients to make no public statements about the case, it’s because every time someone tells a story, there’s another opportunity to impeach their version of events. This isn’t because people consciously lie or embellish, it’s because memory doesn’t work like a video recording. We don’t have perfect recollection of events, so each time we relay a story, we might minimize some points while emphasizing others. Small details might vary from one retelling to the next, even for a scrupulously honest person. And when a significant amount of time passes between an event and when we talk about it, there’s even more opportunity for our memories to become less than perfect. Those small differences can present an opportunity to refute what the witness is saying. Because if the witness changes their story about the details, the cross-examiner will ask, why should we believe they have the other facts right?
When a witness has given multiple versions of the events in question, it’s important to review those with counsel to address and correct any inconsistencies. As in so many areas of trial work, thorough preparation is key.
Demeanor on the Stand
The next big issue that applies to all witnesses is how they present on the stand. A witness who is argumentative, rude, or has a temper will not only alienate the jury, they will probably anger the judge, too. Juries typically take their cues from the judge. If the judge has to chastise the witness repeatedly for behaving badly, the jury is likely to distrust and disbelieve the witness. A witness who is polite, forthright, and demonstrates a desire to be helpful, on the other hand, is more trustworthy to the jurors. It’s perfectly fine for the witness to push back politely against cross-examination that attempts to mischaracterize their testimony — that shows the witness is firm in his or her testimony. But when a witness takes the bait and loses their temper, they again run the risk of losing the jury.
Practice and preparation are the best remedies to this problem. A witness who is prepared to be confronted with pointed questioning or attacks on their honesty will handle cross examination far better than a witness who feels blindsided.
Corroborate with Documents, Records, and Other Witnesses
While a witness who is highly credible might not need corroboration with documents or other witnesses because the jury believes they are telling the truth, a witness with credibility issues should have their testimony be well corroborated by other evidence. The more you can point to records that appear trustworthy (like business records), communications that are candid (where the parties have no incentive to be lying), or the testimony of witnesses who are more credible, the less of a leap you are asking the jury to make by believing your witness with credibility concerns. Jurors understand that even if someone has a history of being dishonest, that doesn’t mean they cannot ever tell the truth. But asking your jurors to just trust a witness with a track record of lying (or worse, actual perjury convictions) based on blind faith is a recipe for disaster. You need to give the jurors the hard facts to rely on so they feel comfortable believing your witness. This often means putting on the witnesses and introducing the evidence that will corroborate your credibility-challenged witness before calling him, so his testimony will be buttressed from the get go.
Take the Sting Out of It – Confront the Credibility Issue Head On
You might have a witness who presents really well, who seems confident, likeable, and knowledgeable despite their credibility issues. This does not mean that you should ignore the problem areas and hope the jury likes the witness so much they won’t be receptive to the cross examination. In reality, jurors don’t like it when they believe the lawyers are hiding information from them. That’s why it is so important to confront credibility issues on direct examination. Your lawyers need to make it clear to the jury they are not trying to conceal relevant information. Confronting past instances of dishonesty or discrepancies in the witness’s recollection of events on direct examination not only prevents the other side from playing it as a dramatic “gotcha!” moment, it also allows your witness to address the problems during friendly questioning. This can help prevent the witness from seeming defensive, evasive, or angry in response to questions about their past honesty (or lack thereof).
Conclusion
All other things being equal, you’d rather have key witnesses with sterling reputations for honesty and fairness, with memories like steel traps. But you don’t always get to pick your witnesses. Sometimes your key witnesses come with baggage. Great trial lawyers know how to prepare and support even the most difficult witnesses. And to build solid cases that will stand up to even the most aggressive cross examination. Bring us your toughest case. We’ll get the job done.