Witness Testifying 101

• Please review your statements, if any, before coming to court. You may be asked questions in relation to your statement. You may be allowed to refer to your statement to refresh your memory. However, it is preferable that you give evidence from your memory without looking at your notes whenever possible.
• Once you have arrived, stay seated just outside the courtroom where the matter is to be heard.
• The lawyer may want to talk to you again briefly before going into the courtroom. Now is the time to ask those last minute questions.
• If the lawyer is not present when you arrive, while you are waiting for him or her to arrive, do not speak to any other lawyers or police officers. Do not talk to other witnesses or potential witnesses about the incident that brought you all to court, nor about what you will be testifying to in court.
• When the matter begins you will probably be excluded from the courtroom. This is so that the court has some assurance that you are not changing your testimony as a result of what you have heard.
• You should sit outside the courtroom in the lobby. Do not wander off or go to the cafeteria. Do not go outside to smoke. If we do not see you when we go out to find you, we will have to adjourn briefly. This is unavoidable if you’re in the washroom but that is the only other place that you should be apart from outside the courtroom.
• The order for calling witnesses usually is as follows: the Crown calls its first witness. The Crown then asks questions in its examination in chief. The defence gets to cross-examine the witness. Sometimes the Crown will ask a few more questions of the witness which have arisen out of cross-examination. Sometimes the judge asks the witness a few questions. Then the Crown calls its next witness and the procedure is repeated until all of the Crown’s witnesses have testified. The Crown then normally closes its case.
• Then, defence counsel has a choice of calling evidence or not calling evidence. Even though you have been asked by someone, either the accused or defence counsel to come to testify, it is possible that the defence lawyer will, after having heard the Crown’s case, feel it is not necessary to call you as a witness. If, however, the lawyer decides your testimony is still needed, this is what you can expect.
• Someone, usually either the clerk or the lawyer, will exit the courtroom and tell you that it’s your turn. Follow the person into the courtroom. The clerk will normally indicate where you should stand. If you have difficulties standing for more than 10 minutes please let the clerk and the lawyer know that, ideally a couple of days before the trial. If you don’t see the clerk indicating a particular spot, look for the microphone.
• The clerk will ask you to either swear on the bible or affirm that what you are going to say is the absolute truth. You can swear using the Torah or another sacred book. Please let the clerk and the lawyer know a day or two ahead of time of your desire to swear using some holy text other than the bible. If you wish to affirm (promise solemnly), you can make that known to the clerk a few minutes before the trial is to begin.
• The defence lawyer will begin asking you the questions. This is your time to tell the story. The lawyer will be asking open-ended questions which will invite you to elaborate.
• Tell the truth. Do not exaggerate and do not understate anything.
• If you don’t know the answer, either because you weren’t there or you didn’t see something, say that you don’t know for that reason.
• If you can’t remember something, admit you cannot remember. Your credibility is not necessarily diminished if you can’t remember everything. While guesses have no place in court, you may know something happened without having actually seen or heard it because of other facts you did know. Inform the court of your logical conclusions and state the bases for what you think happened.
• Don’t answer a question you didn’t hear or you didn’t understand. Ask that the question be repeated. If you still don’t understand you can state that you don’t understand and ask that the question be rephrased. A good way to answer a somewhat ambiguous question is to begin by using the following formula: “If you are asking me ____, my answer would be _____”.
• Answer with a “yes” or a “no”. Don’t forget that a record is being kept of everything that is said in court. Nods of the head or “Mmhm” don’t register on the record. Likewise, demonstrations with hands without a verbal explanation will not be helpful either if a transcript is later needed.
• When the defence lawyer is finished asking you his or her questions, he or she will ask you to answer his or her “friend’s” (opposing counsel) questions. Actually, the two lawyers may or not be friends but they call each other “my friend or my learned friend” out of a respect for the role the other plays in the justice system and out of respect for the court.
• When opposing counsel asks you questions, please keep these points in mind as well as the ones already mentioned
• You are not on trial. You are fulfilling your civic duty as a citizen to help bring out the whole story for the court.
• Do not let yourself get upset or defensive or riled up. Answer questions calmly and respectfully.
• Do not try to “help” your friend by giving extremely favourable testimony. Many judges are very adept at seeing through this and will quickly discount your evidence.
• If there is a pause while Crown counsel is talking to you, do not rush to fill it in. Answer only the question that is asked and do not offer anything more than is asked. Now is not the time to tell your story – that was over when defence counsel sat down.
• An experienced Crown may start asking a series of short questions which require yes or no answers. If you have said yes or no to a couple of questions, do not just continue blindly giving the same answer. Take time to think about every answer even though it may feel that the Crown wants a fast answer. The record will not show that you took a few seconds to reflect before answering.
• Although the Crown may want only a “yes” or “no” as an answer, you are not restricted to those two options. If your answer needs some explaining, go ahead and give the explanation.
• When you are answering the judge’s questions or the Crown’s questions, do not look to a friend, the accused, or the lawyer for the defence for help. This may make your testimony look coached.
• Once the Crown has finished asking his or her questions, the judge will often ask defence counsel if there is anything arising. If an issue arose in cross-examination that wasn’t covered in chief, defence counsel may ask a few more questions
• The judge may also have a few questions.
• Once there are no more questions, you will be free to step down. The judge will say whether you are free to go.If no one says that you are free to go, then don’t leave. You may be re-called to the stand later to clarify a point.
• Once you are told you are free to go, you can leave the courtroom, or you are free to sit and watch the rest of the trial.

At the end of the trial usually everyone is tired and so the defence lawyer may forget to thank you for coming to testify. Please let us thank you now. More importantly than helping out a friend, or a family member, you, as a witness, have played an important role in the justice system. Your evidence will have helped the judge see another aspect of the case that he or she would not otherwise have seen. You can be proud that you have also performed a service to the public. When you testify, you help protect the integrity of the criminal justice system.