Finding a Great Witness

In my time spent in the courtroom as an investigator, and before that as a newspaper reporter, I’ve seen countless witnesses testify. And I’ve interviewed people who are about to serve as witnesses, to help identify any potential issues in their testimony as they prepare for trial.

I’ve watched the powerful effects of a strong witness, and the damage a bad one can inflict. When preparing your case, a combination of what I call great hard and soft characteristics will help make your witness compelling for jurors.

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Witness credibility can be established or undermined by hard characteristics — the facts of their lives. While the threshold is higher for expert witnesses, regular witnesses are not so different.

First, find what makes them believable. Typically, anyone with a law enforcement or military background or an Ivy League education gains an instant aura of credibility. But a good conversation with your witness can identify other facts that can build up their pedigree.

Then, look for any problems. It’s extraordinarily important to perform a due diligence investigation on as many witnesses as possible, to uncover any inconsistencies in your own witness ahead of time, as well as any information about an opposition witness that can tip the balance in your favor.

Common problems:

Inconsistencies between sworn testimony and other records. When a witness is asked about testimony they’ve given in previous hearings, even those with the best of intentions can be careless with details. Go over their previous testimony with them and make sure it’s watertight. It is essential to tell a consistent story.
Exaggerated or nonexistent credentials. Did this person’s Ph.D. come from an unaccredited, diploma mill school? Does their professional certification come from a 5-hour online course? Are there disciplinary records in their field of expertise? Any missing or fake employers?

What at first glance may look like a tiny mistake can, under scrutiny, be judged as a lie. Embellished military service, in particular, can feel like a betrayal to jurors. A series of small missteps can build a larger argument that the witness has a pattern of lying.

A criminal record you didn’t know about. I once attended a fraud trial where the victim, who was in the beginning stages of dementia, was testifying for the prosecution. When it was the defense attorney’s turn to cross-examine him, he was asked if he remembered killing his wife about 10 years earlier. It turns out, this man had actually killed his elderly wife – who requested it because she was suffering from illness, and he was anything but a deranged murderer. But the prosecution had not done their research and was caught totally off guard. The man’s memory was so bad, he did not remember the event, and it put the entire case into question: if he didn’t remember killing his wife, could he be sure the suspect defrauded him?
A history of lawsuits or financial problems such as bankruptcy, tax liens or accounting irregularities can cause juries to question a witness’s trustworthiness.

A focus on the softer side

Soft characteristics go a long way with juries. A witness who is polite and cooperative can lead jurors to truly consider the merits of an argument for the first time. Conversely, someone who comes across as rude can lead jurors to question whether they are confident in telling the truth or feel defensive for some unknown reason. Some tips:

A big red flag: the witness who clearly does not want to testify. This person will typically come across as angry and evasive, leading a jury to give less weight to his or her answers.
Conversely, a witness who is eager to testify can have a powerful impact on juries. In one homicide trial, an elderly woman came to court to testify on behalf of the defendant, a long-time neighbor of hers. The woman was incredibly frail, arriving in a wheelchair and only able to testify with the help of aids. It was as if she got up from her deathbed. She was extremely polite, and her condition gave her additional credibility. The jury could see how important this matter was to her. After that day, many people were able to consider for the first time that the defendant might be innocent.
A calm, well-mannered defendant can change perceptions. One man, an accused gang member, was on trial for violent crimes that would put him in prison without the possibility of parole. When he got up to the witness stand, however, he was articulate, friendly and open to any question. He looked directly into the eyes of both lawyers, letting them speak and ask questions without interrupting. For the first time, the jury saw someone who made them question how he could possibly be a bad guy. While he was eventually found guilty, it took the jurors more than a week to reach their verdict.

Using an imperfect witness

Sometimes potential drawbacks can be fixed by coaching the witness. In other instances, they cannot.

Some potential witnesses just need a little polish. Your witness may have valuable information to share but come across as self-righteous or hostile, often due to nervousness or passion about a particular topic. In some cases, a professional trial consultant can work with that person to prepare for the questions that will be asked, helping to figure out how to articulate themselves effectively in the courtroom.

You can’t fix what you don’t know about, though. A full due diligence investigation can uncover far more information than a standard database search will reveal. An investigator’s report will document a witness’s weaknesses and behavioral tendencies — a valuable tool to prepare for trial.