Witnesses (other than expert witnesses) will be the most inexperienced people in a court case, save possibly for the members of a jury. This can be what leads a witness to be so concerned about giving evidence. Those concerns can rollover into areas that cause such worry for the witness that their evidence is not the best that they can give.
Expert witnesses are in a different category. They will normally be called to give their opinion upon a series of facts. They have to be qualified to give their opinion and there are significant rules that they have to comply with. They are expert witnesses in many ways.
If you are called upon to be a witness in court then it is extremely unlikely that you will be asked to give your opinion on any matters. You will only be called upon to give evidence of facts – usually what you saw or heard. Provided a witness keeps to the rule that they only give evidence of facts and do not get involved in arguing a case with any advocate then the experience should be surprisingly simple.
The party calling a witness will normally have taken a statement from that witness, which may be served on the other side. That should assist the witness to know the areas that they are being asked to deal with. The party taking the statement and calling the witness cannot become involved in coaching the witness. That would be an illegal activity in England and Wales. The witness cannot ask questions such as “What should I say?” as the lawyer can only advise the witness that they should simply tell the truth. If the witness does not know the answer to a question then there is absolutely nothing wrong with confirming that.
Usually a witness will have made a statement quite close to the events. Memories can fade, as well as vary. It is often a good idea to refresh your memory from your original statement prior to going into court to give evidence.
There are some areas of preparation that a witness can take advantage of in order to make the process easier.
The first matter is to take the opportunity to see a trial actually taking place in the same forum as the trial where the witness will be giving evidence. The witness will need some guidance in order to ensure that the case being watched is relevant to their own potential experience. There is no point, for example, in watching a plea and mitigation if what you need to see is what happens when a witness actually gives evidence.
There are some questions that a witness can ask of the lawyers. A description of what to expect and how to deal with areas of cross-examination that can be foreseen may be fine, provided the lawyers make it clear that they cannot tell the witness what to say in answer to questions.
When called into court to give their evidence a witness will normally be shown into the witness box by an usher. The witness will then be sworn in – during which time the rest of the court should be quiet. The side calling the witness will then begin to ask the witness questions, usually beginning with identification and then other introductory questions which allows the witness to relax a bit more. This first period of giving evidence relies on questions being asked of the witness which do not imply the answer.
The next stage will be cross-examination by the advocate for the other party in the proceedings. The idea with cross-examination is to try to elicit more favourable evidence in support of the other party. The witness should bear in mind that during this part of their evidence the advocate for the other party can ask questions that suggest the answer that they are looking for.
When cross-examination is finished the first advocate can ask some more questions. It is also possible for the court (judge, jury or magistrates) to interpose their own questions.
Once the witness has been excused from the witness box it is important that they deal with their claim for witness expenses before leaving the court.