In almost all civil or criminal litigation, persons other than parties to the lawsuit are called on to testify by one of the parties in the case. These persons are called witnesses. Of course, parties in the case also may testify on their own behalf, and, in that respect, they are witnesses, too. After swearing or affirming they will tell the truth, witnesses testify to what they know about facts relating to lawsuits between parties. Those with specific expertise also may be called as witnesses to give expert opinions about issues involved in a lawsuit. Whether a witness testifies in open court or before the trial (for example, in a deposition), every party to the lawsuit must be allowed to question all witnesses to bring forth everything that might be favorable to the party’s position.
A person called as a witness generally must give testimony when it is needed, whether it is convenient or not. In criminal cases, and sometimes in civil cases, witnesses can refuse to testify under the Fifth Amendment to the Constitution when doing so would implicate them in any type of criminal activity (not limited to the case being tried). Witnesses who refuse to answer questions they believe may incriminate them do not waive their rights, as defendants do, if they begin answering other questions. The court can, however, order a witness to testify through a “subpoena.” In such a case, the witness must honor a properly issued and served subpoena, or risk being held in contempt of court, an offense punishable by a fine, imprisonment or both. Since a party to a lawsuit usually must rely on other individuals to testify to what they know, it is very important for witnesses to testify when called.
In some cases, a party to a lawsuit may want to obtain a witness’s testimony before trial. A “deposition” is the taking and recording of testimony before the actual trial. A deposition may be taken by the party calling the witness, or by the opposing party, to discover what the witness knows about the subject of the lawsuit. The deposition may be recorded by a court reporter or with an audio or video recording device.
The rules of evidence have been developed over many years to control all courtroom proceedings. They ensure that credible evidence is presented and that unnecessary or unreliable evidence is kept out of the courtroom. For example, the “hearsay rule” prevents a witness from relating second-hand information. Second-hand (“hearsay”) evidence is not accepted because it is not thought to be reliable and because it would be unfair if an opposing attorney could not directly question the person alleged to have made the statement.
An attorney in a case may object to a particular question asked of a witness. If the judge overrules the objection, the witness must answer the question. If the judge sustains the objection, the witness will not be permitted to answer. When an attorney objects to a question, the witness should wait for the judge’s ruling before answering. During a deposition, the witness will usually be required to answer the question even after an attorney objects, because no judge is present at a deposition to rule on a possible objection. Eventually, if a party plans to use the deposition question and answer, the judge will rule on the objection before trial. The judge’s ruling will determine whether or not the jury will hear the question and answer.
Since the trial’s main purpose is to bring out the truth, both sides in a lawsuit must have a chance to question witnesses. This is done through “direct examination” and “cross-examination.”
The lawyer who calls a witness to testify asks questions to bring out the facts (direct examination). Then, the opposing lawyer asks questions about that testimony (cross-examination). Both lawyers’ questions should serve one purpose: to reveal the facts known by the witness.
Witnesses are sometimes concerned about being cross-examined, but they need not fear this process. The opposing lawyer must test a witness’s memory and determine how it compares with the memories of others. It is natural for several persons to see and remember an event somewhat differently. A witness may remember some facts and forget others. A witness is expected to testify from memory as accurately as possible—no more and no less.
If you are serving as a witness, your own attorney probably will not be present when you testify. Whenever you are testifying, whether during a pretrial deposition or a trial, if you feel particular questions may tend to involve you in the lawsuit, you should exercise your right to speak with your own attorney before testifying. You have the right to have an attorney present during most legal proceedings. If the answer to a particular question would tend to incriminate you (implicate you in the commission of a crime), you have a constitutional right to refuse to answer and should consult with your attorney before responding. Otherwise, you must respond to all questions truthfully, even if you must answer, “I don’t know” or “I don’t remember.”
Usually, lawyers for both parties will want to discuss the case with you before trial. It is not improper for a lawyer to review your testimony ahead of time. In fact, it is the lawyer’s professional responsibility to find out in advance what you know about the case. You are not obligated to discuss the case with any lawyer, but you may find it helpful to learn from a lawyer exactly what questions you will be asked and about proper courtroom procedure. You also have the right to speak with your own attorney before speaking with the attorney for either party in the lawsuit.
Your obligation to serve as a witness is as essential to the equal administration of justice as your duty to serve as a juror. When called to be a witness, testify truthfully and fairly and leave with the satisfaction that you have helped to ensure that justice is done. Remember that you may have your own lawsuit or trial someday and will need and want witnesses to testify for you in a fair and impartial way.
© April 2014 Ohio State Bar Association. Used with permission.
Document last updated 4/10/2014. Please note: The Ohio State Bar Association periodically updates its LawFacts Pamphlets. For updated or additional information, please visit the LawFacts Pamphlets webpage.
© 2020 Palecek, McIlvaine, Hoffmann & Morse Co., LPA