What Happens When You're Called as a Witness

Being a witness in a legal case comes with important responsibilities and expectations. The rules of evidence for criminal and civil cases determine how attorneys may call witnesses and what they can say during testimony. Witnesses should listen carefully to each question,  always tell the truth, and answer only what is asked without volunteering extra information. It is important to remain calm and respectful, follow all court instructions, and maintain appropriate attire and behavior in the courtroom. Witnesses should avoid lying, speculating, or attempting to influence the case with emotional or biased testimony, as perjury is a serious offense. They should not ignore subpoenas, arrive late, or be disrespectful to court officials, as these actions can lead to contempt of court charges. If uncertain about their rights or testimony, witnesses are encouraged to seek legal advice before appearing in court or at a deposition.

Types of Witness Testimony

Attorneys call witnesses for several reasons during a jury trial. Witness testimony can help support the party’s claim in a civil case or bolster a defense in a criminal case. The reason you’re called as a witness determines the nature of your testimony.

• A fact witness describes something they saw or heard that is relevant to the case. For instance, in a personal injury case, you might describe a car accident and what you saw at the time of the collision.
• An expert witness explains complex or scientific facts to jurors. In a criminal case, DNA experts testify about DNA collection to determine if a defendant was at a crime scene.
• Character witnesses testify about the defendant’s character. In criminal cases, defendants may call character witnesses to say they are not the kind of person who would commit a crime.

Witness testimony will be challenged by the opposing legal team, who will try to weaken or discredit its impact.

Witness Testimony in a Deposition

A deposition is part of the discovery process. Depositions can occur before trial, or during civil cases when attorneys gather information about the claim. You will receive a subpoena for a deposition, with instructions to appear at a certain time and place.

In a deposition, the rules of civil procedure are less strict than in court. Although you are under oath, you can testify about things you heard (hearsay) and things you believe (opinion). The main purpose of a deposition is to learn what the witness knows and how they handle cross-examination.

Both attorneys may question a witness during a deposition. You can have your own attorney present if you’re concerned about your legal rights.

Witness Testimony During Trial

Unlike trials on TV or in movies, witnesses only appear when it’s time for them to testify. The attorneys make their opening statements and present the court with witness lists. Most of the time, the attorneys have already argued about who to call and who to exclude. Sometimes, they are still making arguments when the trial begins.

When your time comes, the attorney notifies you when to appear at the courthouse. You must wait outside the courtroom until you’re called. Hearing other witnesses could affect your testimony.

Once you enter, the clerk will swear you in. You must swear or affirm you will tell the whole truth and answer questions to the best of your ability during your testimony.

Direct Examination

When the attorney who calls you questions you, it is called direct examination. The attorney should prepare you before testimony, but there are some important things to keep in mind:

• Wait until the attorney stops talking to answer the question. The court reporter is taking down your answer and can only write one answer at a time. If you interrupt too often, the judge may admonish you.
• Listen carefully to the question. Even if this attorney deposed you before, the questions could be different now than at the deposition.
• Only answer the question the attorney asks. In a deposition, you can talk as much as you want. In court, the attorney only wants the answer to the question asked. Court rules of evidence prevent the attorney from asking a "narrative" question unless the judge permits it. If you start telling a long, rambling story, the attorney or the judge will cut you off.
• If you don’t understand the question, ask for clarification. Don’t answer unless you know what you’re responding to.

Cross-Examination

Opposing counsel has the right to question you. Cross-examination attempts to discredit your testimony or cause you to contradict yourself. In some trials, especially criminal cases, you may be a friend of the defendant and there to support them. In such cases, you may feel hostile towards the opposing attorney. Don’t let that anger affect your testimony. You can end up harming the defendant as well as yourself. 

When giving your testimony, follow the following guidelines:

• Don’t lie or color your testimony trying to affect the case. Thanks to the discovery process, the opposing counsel knows the substance of your testimony. Lying under oath is perjury, and you could face felony charges for doing so.
• Answer all questions fully, but don’t include more information than asked. In cross-examination, the attorney can ask leading questions that are designed to elicit a yes-or-no answer. Even if there is more to the answer, do not try to give the attorney more information. If it is important, your attorney will address it with you after cross-examination.
• Try to remain calm. The opposing counsel may try to rattle you or make you upset. If you are being bullied, your attorney will step in.

Courtroom Decorum

Trial court, like any other legal proceeding, has its own rules that everyone must follow. Regardless of how you feel about the court or the situation, you must obey the rules of the court and the orders of the judge.

• Arrive on time: The "court call" will probably be first thing in the morning, meaning you may sit there all day. You still must be there by the time the bailiff opens the doors.
• Follow all instructions given by any court officer: Once you arrive at court, you must obey any instructions given to you by the judge, the bailiff, or the court clerk. The bailiff may order you to put away your cell phone or even surrender it to the clerk. If so, hand it over.
• Dress properly: A suit or business attire is preferable. If you don’t have those, your clothing should be clean, neat, and plain. Avoid extreme hairstyles, even if that’s your thing. Try to cover any socially provocative tattoos. Many judges prefer witnesses to look plain and dull.
• Be respectful to all court officers. The judge is "your Honor." The bailiff is "officer" or "deputy." Avoid using any common curse words or addressing court officers as if you were friends.

Contempt of Court

Judges can charge witnesses with contempt of court for failing to follow court procedure. Witnesses can get in trouble for:

• Being disrespectful to the judge or other court officials
• Ignoring a subpoena or other court order
• Failing to appear on time
• Failing to answer a question during testimony

Don’t try to be clever or witty during your testimony. Leave when excused. The judge will tell you if you should stay at the courthouse or if you’re done for the day.

Other Kinds of Witness Testimony

There are other places you may provide a witness statement. Many civil lawsuits never go to trial, but still need written witness statements. The attorney could ask you to complete an interrogatory. This is a list of questions about the case. When you complete an interrogatory, you sign under oath that the answers are true to the best of your knowledge.

Interrogatories also appear in arbitrations and mediations. These are less formal dispute resolution procedures without juries. If an attorney does not have witnesses, they will use witness statements and interrogatories to present evidence.

In a grand jury proceeding, jurors can question the witness directly. Witnesses must answer all questions put to them, but they cannot be compelled to incriminate themselves.

Get Legal Advice From a Litigation Attorney

If you receive a subpoena to appear as a witness, you may have concerns about your legal rights. You have a right to consult an attorney and discuss what you should and should not say before responding to the subpoena. Talk to a litigation attorney and make sure you’re doing the right thing before acting as a witness for anyone else.