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What is Witness Preparation?

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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 06 November 2016
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Witness preparation is a process in which a witness for a case is prepared to testify by the legal team which intends to call the witness. Not all witnesses are asked to undergo witness preparation, but usually key witnesses are encouraged to work with the legal team. Preparation benefits both the witness and the lawyers, and can make or break a case.

Whether a witness is an experienced expert witness or someone who has never taken the witness stand before, witness preparation can be important. The lawyers are not allowed to coach the witness specifically about what to say on the stand, but they can take the witness through his or her testimony, usually first in a casual setting and later in a mock courtroom, to get the witness comfortable and familiar with the courtroom setting.

During witness preparation, the legal team provides the witness with specific tips and advice about how to behave on the stand, such as recommending that the witness speak clearly, reminding the witness to testify accurately, and telling the witness to avoid using gestures and excessive colloquialisms during testimony. It is also typical for advice to be provided about dress and demeanor so that the witness will be presented in the best possible light.

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In addition to walking the witness through testimony and questions from their side, the legal team may also stage a cross-examination. This is used to demonstrate the kind of questions which may be asked by the other side, and to help the witness prepare. Cross-examiners may try to throw the witness off, with the goal of eliciting compromising information or simply undermining credibility in front of the jury. By being prepared for the kinds of questions which will be asked, the witness can practice keeping cool on the stand and responding clearly and in a measured way.

Sometimes the lawyers will record video during witness preparation. The legal team can later take the witness through the video to point out strong and weak points as well as specific issues. For example, wrinkling the forehead or making other facial expressions can be detrimental to credibility. The lawyers can also point out areas where the witness's testimony is clearly confident and strong, to show the witness the demeanor and presentation they are going for.

Witness preparation gets witnesses more comfortable with the witness stand, the courtroom, and the kinds of questions which will be asked. Even with preparation, a witness can still flounder on the stand, especially if she or he was not completely honest with the legal team ahead of time about issues which could be brought up. For example, if a witness thinks that it will be possible to conceal an affair, it's possible that the opposing counsel will dig up enough information on it to make the witness feel uncomfortable on the stand for the purpose of making the witness look questionable to the jury.

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serenesurface
Post 3

@donasmrs-- I don't think that that's something most people would dare. A witness is not only questioned by its own legal team but also the other legal team. If there are discrepancies in the testimony, it will be discovered during cross questioning and it will not benefit the legal team who told their witness what to say.

Moreover, witnesses swear to speak the truth and not doing so has serious consequences.

stoneMason
Post 2

@donasmrs-- I don't think so, or I hope that's not the case.

In the US, witness preparation just means getting the witness familiar with the courtroom setting and procedures. A courtroom has specific rules, one cannot act or speak as they like, especially when they are a witness. A witness who acts or speaks improperly can have a very negative affect on that party's argument. Even if the witness is speaking the truth, demeanor and attitude can cause the jury to dislike or distrust the witness. Or it may simply complicate the questioning or record keeping process.

Under no circumstances is a witness told what to say. The legal team can help a witness with how to speak however. For example, a witness may be recommended to answer more directly or to keep their answers shorter. This is completely acceptable, in fact encouraged.

donasmrs
Post 1

I think in some countries and in some cases, "witness preparation" means helping the witness lie properly without getting caught.

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