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At the Hearing

How do I introduce (“call”) a witness?

Introducing a witness in court is referred to as “calling” your witness. However, there are a few things to think about before you call a witness to testify.

First, you need to know what your witness has to say and whether it is helpful for your case.

Then, you need to find out if the witness is willing to testify in court. Many people are happy to talk about a situation one-on-one but don’t want to testify in court. If a witness is not willing to testify, you might have to get a subpoena. A subpoena is a court order that makes a person come to court to testify. Once you know who your witnesses will be, you might have to tell the other side. This often happens during discovery with a witness list. Depending on the state’s laws and the type of court case you are in, some courts will allow you to call witnesses without a list.

Make sure to let your witnesses know when to come to court. Your witnesses might have to wait outside of the courtroom until it is their turn to testify. The reason they have to wait in the hall or waiting area is so that other testimony doesn’t change their story. This is called “sequestering” a witness. The sequestering process may take some time, and so you can suggest that your witness bring a magazine or some other item to keep them occupied while they wait.

Although the process might be different from state to state and from court to court, in most courts, you will let the judge know who it is that you want to call to come and testify by saying “Your Honor, I call my first witness, Jane Doe.” Then, the court officer will generally go into the waiting room to alert the witness. The person can then enter the courtroom and s/he will be sworn in. Once your witness is seated in the witness chair, known as the “witness stand,” you can begin to question him/her.

How do I question a witness?

You can start questioning your witnesses, one at a time, by asking them their name and asking them some background information, like how they know the parties in the case. You will then have to get into asking questions about the event they witnessed or any other issue they are there to testify about. It is best if you can prepare with your witnesses beforehand so you know what they will testify about. This will also help you decide what questions you need to ask for them to relay that information to the judge.

When you question your own witnesses, this is called direct examination. On direct examination, you will usually only be allowed to ask open-ended questions that do not lead your witnesses in a certain way or influence their answers. “Leading questions,” where you suggest the answer to the question, are not allowed.

Here are some good and bad examples of direct examination questions:

Open-ended (okay to ask)

Leading (not okay to ask)

“What color is the sky?”

“The sky is blue, isn’t it?”

“Could you please tell the court what you saw on January 15th, 2018?”

“You saw the respondent abuse me on January 15th, 2018, didn’t you?”

For each new topic that you question your witness about, you will need to establish how the witness knows the answer. For example, let’s say you want to ask the question:

“Could you please tell the court what you saw on January 15th, 2018 at noon?”

You must first ask questions that help establish how the witness knows that anything happened at all on January 15th, which is known as “laying a foundation.” This could include questions such as:

  • Where were you on January 15th, 2018?
  • Who was with you on January 15th, 2018?
  • Do you remember what happened that day at noon?

And then, after you laid this “foundation,” you can ask the important question: Could you please tell the court what you saw on January 15th, 2018 at noon?

After you have finished asking your witnesses questions, the other side will have a chance to ask them questions, which is called cross-examination.

Note: When your witnesses are testifying, your witnesses can only testify as to events that they have personal knowledge of. They are not allowed to testify about things they have heard secondhand, this is called hearsay.

When I testify, who will question me?

When you are testifying, you do not need to ask yourself questions and answer them. Instead, you can say what happened in “story” form or the judge may ask you questions. Remember to include information like the time and day that an instance of abuse happened, where it happened, who was there, and what actually happened. After you testify, the respondent, or his/her attorney if s/he is represented, will get a chance to “cross-examine” you to try to discredit things that you said.

How do I “cross-examine” a witness?

Cross-examining a witness can be very difficult, even for lawyers who have spent a lot of time in court. The purpose of cross-examination is to create doubt about the truthfulness of the witness’s testimony, especially as it applies to the incidents that are at issue in the case. Cross-examination questions are usually the opposite of direct examination questions. In a direct examination, you have to ask the witness open-ended questions that allow them to fully explain their answer. A cross- examination question should be very pointed and requires only a one-word answer, preferably “yes” or “no.”

Questions related to prior testimony
The questions that you ask on cross-examination have to be related, in some way, to the issues that the witness talked about during direct examination. You can use cross-examination to point out inconsistencies in the witness’s story. By highlighting testimony that does not add up, you can cast a light of doubt on everything that the witness has said. Here is an example of this type of cross-examination line of questioning where you first confirm what the witness said on direct and then point out inconsistencies:

  • You: Didn’t you testify that you saw me with my husband at the park on Saturday and that he did not hit me?
    • Witness: Yes, that’s what I said.
  • You: And you said that you took the blue line bus to get to the park that day?
    • Witness: Yes, that’s true.
  • You: Isn’t it true that the blue line bus does not run on weekends?
    • Witness: Uh, yes – it only runs during the week.
  • You: No further questions Your Honor.

As you can see, once you have put the witness into a position where his/her testimony comes into doubt, you do not want to ask another question to allow him/her to clarify or provide an explanation. It is best to end the cross-examination and let the doubt linger or move onto a different line of questioning. Sometimes a great cross-examination isn’t defined by the questions that you do ask, it is defined by the questions that you keep yourself from asking.

Questions related to underlying motivation or bias
Your cross-examination can also include questions about the witness’s underlying motivations for testifying or any bias that the witness may have in favor of the other party or against you. For example, you could ask:

  • Isn’t it true that you owe the other party money? And isn’t it your hope that he will forgive the loan if you testify for him today?
  • Isn’t it true that the other party is dating your sister? And so you want to get on the other party’s good side by testifying for him today?
  • Isn’t it true that I broke up with you in high school? And you were so upset you promised to get back at me some day?

Questions related to crimes involving dishonesty
You can also ask questions that would show that the witness has been convicted of a crime involving dishonesty, which is known as a “crime involving moral turpitude.” These types of convictions could make a judge think the witness is less believable (credible). However, be careful to only ask these questions if you know that the person was convicted. For example, you could ask:

  • Isn’t it true that you have been convicted of fraud?
  • Weren’t you convicted of writing bad checks?

The questions in the last two categories, above, all suggest that the witness has a reason to not be truthful or hasn’t been truthful in the past. If you are asking questions like this though, you want to make sure that you know the answer before you ask and that you are only asking the questions that will be answered in a way to help your case.

What if my witness’s credibility is damaged during cross-examination?

Just like you will be cross-examining the opposing party’s witnesses to try to make them less believable (“damage their credibility”), the same thing may happen to your witnesses. If your witness’s credibility is damaged in this way, you may be able to ask questions on “re-direct” after your witness is cross-examined. On re-direct, you can only ask questions related to the cross-examination. Using open-ended questions, you can ask for a witness to provide more detail and explain away any testimony that you believe was damaging.

For instance, let’s take the example given in the prior question where you cross-examined the opposing party’s witness regarding the blue bus line. If the opposing party got a chance to re-direct the witness, it might look like this:

  • Opposing party: You testified on cross-examination that you took the blue bus line to the park on Saturday but then you acknowledged that the blue bus line only runs on weekdays. Can you explain this inconsistency in your testimony?
    • Witness: I got confused because I always take the blue line bus to the park but I usually go on Fridays. Now I remember that I waited for the bus that Saturday and it never came so I took an Uber. I have the proof on my phone actually of that Uber ride and it shows the date and time.

Keep the possibility of re-direct in mind if your witnesses’ testimony has been damaged by the other party’s cross-examination, but don’t ask for a re-direct unless it is absolutely necessary. Re-direct can open the door to re-cross, which could produce more damaging testimony. Also, judges often won’t allow re-direct in an effort to move trials along.

Is there a process to admit evidence other than testimony?

Every court is different, but generally there is a certain way that evidence is entered into the court record.

  1. Have the evidence marked by the court clerk. The clerk will assign a number to the evidence, like “Petitioner’s Exhibit 1,” so that the court can keep track of the evidence. This also helps if the case is appealed so that anyone reading the transcript knows what evidence is being referred to. If the evidence is a document or a photograph, you should bring extra copies to give to the other party and to keep for yourself. During the trial, it is helpful to mark down notes for yourself about what number each piece of evidence is given so that you can refer to it during the trial as needed.
  2. Then you will ask the judge if you can show the evidence to the witness. The judge may let you walk up to the witness, which is known as “approaching the witness,” or the judge may order the court officer to take the evidence from you and hand it to the witness.
  3. Once the witness has the evidence, you will have the witness describe what the evidence is and where it came from, in very basic terms. (Note: If you do not have a witness, you could describe and enter the evidence while you are testifying.) For example, you could ask:
    • You: “What is Petitioner’s Exhibit 1?”
      • Witness: “It is a photograph showing a knife.”
    • You: “Have you ever seen that knife before?”
      • Witness: “Yes, it is the other party’s knife.”
    • You: “How do you know?”
      • Witness: “The knife has a carving of a bear on the handle, and it has the other party’s initials on the blade. I have seen it at his house and in his car glovebox.”
    • You: “Is this a fair and accurate depiction of the knife?”
      • Witness: “Yes it is.”

Asking if the photo is a “fair and accurate depiction” is typical language that is used to show that the photograph accurately reflects the item in the picture, which is known as “authenticating” the photograph. Note: A witness does not have to be the one who took a photograph to be able to authenticate it although if the witness did take the photograph, you can ask about that.

You can use similar questions if you are trying to admit physical evidence, such as the actual knife. However, instead of asking if it is a “fair and accurate depiction,” you would ask “Is this the actual knife?” Similarly, if you are trying to enter documents into evidence, your last question would be “Has this document been altered in any way?” For videos, you could ask the following questions:

  • You: “Have you seen this disc before?”
    • Witness: “Yes, this is the compact disc that I created with the video of the altercation on June 7, 2019.”
  • You: “How do you know that?”
    • Witness: “I took the original video on my cell phone, and then I transferred it to this disc. I labeled the disc ‘June 7, 2019 fight’ and that is my handwriting on the disc.”
  • You: “Was the video altered in any way?”
    • Witness: “No.”
  • You: “Does the video show a clear and accurate depiction of what occurred between you and the other party on June 7, 2019?”
    • Witness: “Yes.”
  1. After you have laid the foundation for the evidence, you can ask the judge if it can be admitted into evidence. The other party can object to your evidence being admitted. The other party could also ask the witness additional questions about the evidence to before deciding whether to object to the evidence or not. These questions are called “voir dire.” Keep in mind, when the other party is trying to admit evidence, you also can object or ask voir dire questions.
  2. If the judge accepts the evidence, it will be marked as “admitted” and you are free to ask questions about it with any of the people who are testifying. The judge will usually keep the evidence in the court, so if you are trying to admit something from your cell phone or another item that you need back, it is best to bring in printed screenshots or photographs if possible.