Witness Preparation

The term witness preparation refers to any type of advice or training given to someone who is going to give sworn testimony with the intention of helping improve the quality of their testimony. All persons who might testify in court are potential candidates for witness preparation, including civil and criminal case defendants, plaintiffs, victims, experts, eyewitnesses, and other lay witnesses. Witness preparation may be used to prepare witnesses to testify during trial, but it is also used to prepare them to testify in pretrial depositions and hearings. Witness preparation is carried out by attorneys in most cases, but psychologists, communication specialists, acting coaches, and other consultants assist attorneys in preparing witnesses in some cases—especially high-profile cases.

The two main goals of witness preparation are to educate witnesses about the testimony process and to improve their communication skills. Whether carried out by attorneys, psychologists, or other consultants, witness preparation can be thought of as a behavioral intervention designed to improve communication skills and foster an appropriate level of confidence about testifying. This entry provides an overview of the techniques used to prepare witnesses to testify in court and a summary of the small, but generally supportive research literature examining its use.

Witness Education

Most people who undergo witness preparation training are novice witnesses who have little or no experience testifying. Sometimes, these witnesses know little about the nature and process of courtroom testimony, such as where they will sit in the courtroom, who will ask them questions, and what the questions will be like. These circumstances often contribute to feelings of anxiety and fear in novice witnesses. Research suggests that one way to reduce witnesses’ feelings of anxiety about testifying is to educate them about the testimony process by having them participate in a testimony simulation. A testimony simulation can also be thought of as a testimony rehearsal or a dry run. In a testimony simulation, the witness responds to the types of direct and cross-examination questioning that their attorney expects them to experience in the courtroom. Ideally, the direct examination questioning in the testimony simulation is conducted by the attorney who will question the witness in court, while an unfamiliar attorney conducts the cross-examination testimony.

Although many witnesses are apprehensive about testifying and unsure about how well they will be able to testify, some witnesses are extremely eager to testify and overly confident about how likely jurors are to believe their testimony. In these instances, witness education can be used to induce a realistic amount of anxiety in the witness. For example, some criminal defendants want to testify in their defense because they feel that they can simply explain or argue away all the evidence that the prosecution has amassed against them. These defendants see testimony as an opportunity to tell their story, the way they see it, and tend to argue and become defensive in response to challenging cross-examination questions. Testimony simulations can be used with overconfident witnesses to provide a realistic example of what it is like to be cross-examined and to show them that their “I’m right, you’re wrong” approach to testifying is not likely to be persuasive in the courtroom.

Testimony Delivery Skills

Testimony delivery skills are the verbal and nonverbal behaviors that witnesses use to create a desired impression on those observing their testimony, including jurors, judges, and attorneys. Although the type of impression that an attorney wants a witness to create can vary considerably from witness to witness, ranging from confident and in control (e.g., a falsely accused executive) to indignant and upset (e.g., a sexual harassment victim who has been persecuted for coming forward), all attorneys want their witnesses to appear honest and to be believed. Most testimony delivery skills are intended to help witnesses appear honest and believable.

Critics of witness preparation may ask why honest witnesses need to be taught to appear honest. Nearly, all cases that go to trial or come close to going to trial involve multiple versions of the same event or set of events. Witnesses disagree about what happened, who did what, when they did it, and why. When this happens in the courtroom, jurors, judges, and other decision makers must decide which witnesses to believe. Unfortunately, people are not very accurate at telling when other people are being honest and when they are being deceitful. Indeed, years of research has shown that most laypeople have no better than chance accuracy at detecting deception. One reason why most people are inaccurate lie detectors is that they base their inferences about deceitfulness on behaviors that are not clearly associated with lying. The most common layperson beliefs about deceitfulness are that liars fidget, shift their posture, make poor eye contact, stammer, and frequently say “uh” and “um.” None of these behaviors are consistent indicators of lying, although they are all signs of nervousness. Honest witnesses who show these and other signs of nervousness while testifying are at a risk of being seen as deceitful simply because they are nervous, flustered, or uneasy. There are many reasons why honest witnesses appear nervous while testifying, and witness preparation is used to help honest but nervous witnesses avoid looking like liars in the eyes of jurors.

The most important testimony delivery skill for witnesses to master is to be completely honest. Witnesses who attempt to present only selected pieces of the story often get called on the incompleteness of their answers and end up facing the types of aggressive and challenging cross-examination questions from opposing attorneys that tend to elicit behavioral signs of nervousness. Moreover, witnesses who are caught being less than 100% forthcoming in one area of their testimony will likely have all their testimony seen as dishonest, regardless of the quality of their other testimony delivery skills. One witness preparation technique that is used to help witnesses avoid appearing deceitful in their testimony is to have them review all previous statements, testimony (e.g., deposition, pretrial hearing), and other case material related to the case. Witnesses often give statements and deposition testimony many months or even years before trial, and reviewing this material allows witnesses to be completely consistent in their story. The merit of this technique is based on the assumption that the witnesses were completely honest in their previous statements and testimony. Although there is a risk that reviewing earlier statements and testimony can create a false sense of confidence or accuracy in witnesses, being uncertain about the content of previous testimony makes honest witnesses vulnerable to appearing unreliable simply because they do not remember relatively minor details of their previous statements.

Other testimony delivery skills that are emphasized by attorneys and consultants during witness preparation training are to listen carefully to the question being asked and to respond only to the content of that question. Witnesses should understand that the attorney will ask another question if he or she wants more information. Witnesses should also be comfortable with saying, “No” and “I don’t know” when those are appropriate answers, and they should not guess or provide an answer simply because an attorney repeatedly asks for the same piece of information. Thus, witnesses should avoid using phrases such as “I think” or “I guess.” Witnesses should also avoid using rehearsed statements or answers because they appear unnatural and witnesses may become so whetted to rehearsed statements that they rely on them throughout their testimony and repeat the same statements in response to many different types of questions.

Witness preparation is also used to teach a number of nonverbal communication skills. Witnesses are taught to make eye contact with attorneys and jurors, maintain good posture, and avoid looking at the attorneys who called them when asked a difficult question by opposing counsel. Witnesses are also instructed to speak clearly and to avoid speaking too quickly or too softly. Witnesses are encouraged to be expressive and comfortable with showing genuine levels of emotion; however, they are also taught to avoid overly dramatic emotional displays and signs of anger and defensiveness.

Witness Preparation Training Techniques

The most common witness preparation training regimen involves an iterative process of instruction and testimony simulation. The first step in the training process is to instruct witnesses about the basic format of courtroom testimony, such as the difference between direct and cross-examination. At this stage, witnesses are also given basic advice about giving effective testimony, such as being honest, listening carefully to the questions that are asked, and responding only to the questions that are being asked. The next step in the preparation process is to have the witness participate in a testimony simulation, undergoing both direct and cross-examination questioning. Additional instructions for improving the quality of testimony are then made by the attorney or consultant, based on the witness’s performance during the simulation. Some attorneys and consultants prefer to make recommendations during the testimony simulation, while others prefer to wait until the testimony simulation is completed. If needed, a second testimony simulation can then be used to evaluate how well the witness was able to follow the most recent set of recommendations.

Some consultants videotape testimony simulations and use the recordings to show witnesses the strengths and weaknesses of their testimony. However, some attorneys prefer to avoid videotaping testimony simulations because there is always a chance that videotaped material may become discoverable to opposing attorneys. Although attorneys can argue that videotapes such as these should be protected as an attorney work product, especially when the witness is their client, many prefer to avoid the risk of creating discoverable material and do not allow videotaping of the testimony simulations.

Does Witness Preparation Work?

Witness preparation research is relatively uncommon, with only four published witness preparation studies in existence. Two of these studies examined the efficacy of relatively brief (15 minutes) witness preparation training programs that were designed to inform eyewitnesses about the purpose of direct and cross-examination and to encourage them to think about how they would answer specific questions that they might be asked when testifying. The participants in both the eyewitness studies were undergraduate research participants. The other two witness preparation studies examined a longer training program (1-2 hours) with criminal defendants. Training in these studies was designed to improve the defendants’ use of verbal and nonverbal communication skills by having defendants watch videotapes of their testimony and practice improved communication skills with a researcher playing the role of a defense attorney. One of the criminal defendant studies used volunteer research participants as mock witnesses, and one used real criminal defendants as participants.

Despite variations in methodology, findings from the four existing witness preparation studies converge to provide generally positive support for witness preparation. Witnesses who were prepared to testify were generally seen as more confident, certain, and composed. Prepared witnesses also tended to report being more confident in their testimony, and simply participating in simulated testimony questioning has been found to reduce witness anxiety about testifying.

Coaching and Unethical Training

The term witness coaching is often used to denote instructions or training that are unethical or illegal. For example, it is unethical and illegal for attorneys to knowingly encourage witnesses to commit perjury. Although it is clearly improper for an attorney or consultant to instruct a witness to lie, the line between improving testimony quality and changing testimony content is not always clear. Social science research suggests that the content of witnesses’ recollections and their confidence in them can be influenced by suggestive questioning, corroborative or contradictory information from others, and continued retelling of their experiences. Thus, the process of witness preparation may inadvertently influence what witnesses have to say when testifying. This potential risk of witness preparation training must be weighed against the potential risk of a truthful witness being seen as dishonest because he or she was not prepared to testify. Ultimately, it is up to ethical attorneys and consultants to ensure that their training techniques are used to allow witnesses to give truthful testimony and not to subtly influence what their witnesses have to say.

References:

  1. Boccaccini, M. T. (2002). What do we really know about witness preparation? Behavioral Sciences and the Law, 20, 161-189.
  2. Boccaccini, M. T., Gordon, T., & Brodsky, S. L. (2003). Effects of witness preparation on witness confidence and nervousness. Journal of Forensic Psychology Practice, 3, 39-51.
  3. Boccaccini, M. T., Gordon, T., & Brodsky, S. L. (2005). Witness preparation with real and simulated criminal defendants. Behavioral Sciences and the Law, 23, 659-687.
  4. Posey, A. J., & Wrightsman, L. S. (2005). Trial consulting. New York: Oxford University Press.
  5. Salmi, L. R. (1999). Don’t walk the line: Ethical consideration in preparing witnesses for deposition and trial. Review of Litigation, 18, 135-179.

Return to the overview of Trial Consulting in Forensic Psychology.