Welcome to Part Two of my series of observations on the high anxiety of giving testimony. In this part, the number one mistake made by witnesses.
Giving testimony is really a fairly simple procedure. Attorneys ask questions and witnesses give answers. Most questions are about something the witness has experienced. So, a good pattern of questions is similar to a journalist conducting an interview: who, what, when, where, how and why?
Simple, right? Not so much.
Especially with the “why” question, witnesses often commit the number one mistake in testifying: they guess.
Whenever a witness says: “I guess,” “I would imagine,” “I’m pretty sure,” “I suppose,” or “from what everyone has told me,” you know the witness is heading for trouble. Most of the time the last answer “what everyone has told me” is not allowed by the hearsay rule, but if you are an attorney whose witness is guessing, any objection you make in effect says “Sorry, Your Honor, my witness is an idiot and doesn’t know what they are talking about.” This is not a good position to be in when it is your witness testifying, much less if it is your client testifying.
Why is guessing an answer the number one mistake in testifying? Because most of the time you will guess wrong! It never fails. Most guesses given under oath are just plain wrong. Trust me on this. I have had almost 40 years’ experience of listening to bad guesses.
Good trial attorneys know that.
This is why if it is your witness on the stand and they start guessing, an attorney holds their breath to see what rabbit hole we are going to go down today. This is very exasperating because when you talked to the witness prior to their testimony, you told them: “Just answer the question truthfully! And if you don’t know the answer, say so. DO NOT GUESS!”
On the other hand, the attorney who is opposing the witness, like a shark sensing blood in the water, can circle in for the kill. What is the opposing attorney trying to kill? The witness’ believability or credibility. Most of the time when you are attacking witness credibility to a judge or jury, you are not saying that they are lying, you are arguing that their testimony is not reliable and therefore cannot be believed. The testimony is just wrong because the “guess” contradicts other witnesses or physical evidence in the case.
If guessing is so bad, why do witnesses do it?
First, guessing an answer is part of our daily lives. We often have to make decisions based on less than all the facts. That experience bleeds over into giving testimony. But remember, giving testimony is giving the truth, the whole truth and nothing but the truth. Guessing may or may not be the truth.
Second, there is pressure to come up with an answer while you are under oath. If you are being asked about something that you witnessed, you feel that you should know all the answers. And it is the “I should know this” pressure that leads you to guess and guess wrong.
So, when testifying, it is good to remember the wise words: “Let your yes be yes and your no be no.” And if you don’t know the answer, just say “I don’t know.” Do not guess!