01 July 2009

A Witness’s Role

The way a witness presents the facts of a case can influence the emotions of a jury. Maurice Possley is a Pulitzer Prize-winning journalist who worked for the Chicago Tribune for nearly 25 years before retiring in 2008. He is the author of two nonfiction books. This article appears in the July 2009 issue of eJournal USA, Anatomy of a Jury Trial.

By Maurice Possley

The words of a witness are among the most powerful forms of evidence to be heard in an American court of law. Witness testimony has not only the power to inform, but also the power to influence the emotions of jurors who are hearing the case and ultimately will render a verdict.

Whether these words are spoken by the victim of a crime recounting how he or she was robbed, raped, or shot, or come from a mother whose son, brother, sister, or husband was murdered, or are spoken by a bystander who happened to be present at a crucial moment when bullets were fired or a knife was thrown, the words of a witness are frequently riveting and emotional, and provide the most dramatic moments of a trial.

Ultimately, jurors hearing a case must decide whether the testimony of a witness is the truth. In deciding this, jurors weigh a witness’s words and demeanor, as well as his ability to withstand cross-examination designed to undermine his testimony.

There are many forms of evidence in a trial, no matter if the case is the prosecution of individuals accused of a crime or a company accused of committing a civil wrong.

There is physical evidence collected at crime scenes, such as fingerprints and DNA and bullet casings. There also is documentary evidence, such as records of financial institutions, corporate e-mails and resolutions, and signed agreements.

And while these forms of evidence have a power and significance that differs from case to case, the testimony of witnesses — whether they are eyewitnesses to crimes, actual crime victims, or defendants accused of crimes— is frequently what sways jurors.

There are different types of witnesses. In criminal cases, the most common witnesses are police officers and eyewitnesses. Other witnesses may be called to testify about conversations with the accused. Lawyers for the accused may call witnesses to testify to an alibi for the defendant. The defendant may be a witness on his or her own behalf to deny participating in a crime.

In Rehearsal

By the time most witnesses in criminal and civil cases actually take the witness stand, their testimony has been picked apart, studied, and rehearsed many times with their lawyers. Most are prepared well in advance of their appearance in court. Some witnesses are even subjected to mock trials prepared by their lawyers, who then interview the mock “jurors” afterward to learn how the testimony of these witnesses was perceived.

Witnesses are instructed to sit erect in the witness box and to swivel their bodies toward the jurors so that the jury may see their face and body language during their response. This is important no matter whether the case is being heard by a judge or a jury, but it is exponentially important when jurors — men and women from all walks of everyday life — are going to be reaching a verdict.

In criminal cases, witnesses for the prosecution are prepared by prosecutors who inform them of the questions that likely will be asked so that their answers can be as precise and accurate as possible. These witnesses are usually subjected to mock cross-examinations so that they will not be unduly flustered and give possibly erroneous testimony.

In civil cases and, in some jurisdictions, criminal cases as well, witnesses (except for defendants in criminal cases) are allowed to be questioned under oath prior to trial. That testimony may be used to impeach their trial testimony should it diverge.

In many cases, both criminal and civil, juries and judges make decisions based on whether they believe the witnesses are telling the truth, telling lies or, most often, telling what they think they saw or remember to the best of their ability.

For centuries, eyewitness testimony has been considered one of the most reliable forms of evidence. In recent years, however, considerable research has revealed that eyewitness testimony can be very unreliable.

A study of cases by the Innocence Project in New York City shows that eyewitness misidentification is the single greatest cause of wrongful convictions in the United States. More than three out of four wrongful convictions identified through DNA testing involved faulty eyewitness identification.

A Witness Myself

I was a witness on my own behalf after I was sued by a former prosecutor who accused me of defaming him in an article I wrote for the Chicago Tribune in 1999. The lawsuit was filed in 2000, and I was called to the witness stand in the spring of 2005, more than five years after the events in question occurred.

As a witness, I was asked to take an oath and swear that I would tell the truth to the jury that was hearing my case. I was on the witness stand for nearly three days, answering questions from my lawyer and from the lawyer who alleged that I had defamed him.

I could not refuse to answer the questions without a constitutional reason, and in my case there was no such reason. After I was asked a question, I paused to consider my answer and then looked at the jurors to deliver my answer. I wanted them to be able to look me in the eye and judge whether I was telling the truth or telling a lie.

I knew the truth, but I found it emotionally difficult to focus while I was on a witness stand in front of a jury and a judge. Under cross-examination, it is easy to lose your train of thought and not fully understand the question and possibly give testimony that is not accurate or truthful.

As a witness, I had to concentrate on being truthful and answering questions — no matter how difficult — as accurately as possible.

In the end, I hoped the jurors would believe me.

And they did.

When they returned their verdict that found no damages against me, I wept. And I found a new appreciation for those persons who would be defendants and for whom the penalty would not be monetary damages, but the loss of liberty itself.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.