The use of Jury Instructions in Witness Preparation

As difficult as it is to accept the practical, as opposed to the ideal, the best way in which a lawyer can prepare witnesses for trial, is to speak quite frankly with their client. Is their client the witness, the defendant, petitioner or plaintiff? Depending upon who the lawyer’s client is makes all the difference in how witness trial prep takes place.  

Why would a client, who could even be a defendant unlikely to take the stand, need to be the lawyer’s first consideration for witness trial prep? This is because trials are not really a matter of justice as much as they are bound by the rules of evidence. Whoever the client is, they must be aware that their best friend or enemy in the evidentiary arena are the Jury Instructions, The client must be made aware that witness preparation involves money. The client’s financial resources can require selecting which witnesses will be prepped and which will not. This is the reality as to whether the attorney is privately hired or working “pro bono” or on a reduced fee.,

The client may very well be paying a pretty price for all this witness preparation. In civil cases, witnesses can request a fee mandated by statute. Who the parties are to the case, the witness list prepared by both sides and submitted to the court, and whether or not the witness will actually be called are all considerations evidentially, practically (distance and availability in transporting to trial including travel expenses for example), and financially.

Prudent witness list

Based on the above factors, the attorney must take important consideration about who to call for their side of the case. Jury Instructions play a big role in this decision in that the Jury Instructions identify for the Judge and Jury what must be shown (and what makes no difference even if present at the time of an incident) in order for the proponent of the case to succeed. This also raises the issue of who to try and exclude via motion to the court from the opponent’s list. This may seem strange at first blush but consider where that witness is clearly prejudice or irrelevant. Example: a blind man 100 yards away and at the scene of a dispute over a warehouse delivery, may have heard something or overhead (hearsay) others talking in a way that favors one’s opponent. This does not make the blind man an automatic credible witness for either party.

Another credibility factor can arise if the client tells the lawyer that someone on their own list or that of the opponents is already known to have a bias or prejudice against the client. While a hostile witness is ordinarily one called to testify as a witness for the opponent, there are some situations in which the lawyer may try to enter evidence without the use of their own witness witness due to known bias of that witness EXAMPLE: A recently fired employee witness.

Unless the court is asked and will deem the witness as “hostile” there is no way for the  Judge or jury evaluate the testimony in light of the bias. The term “hostile witness” must be agreed to by a request to the court for the designation. This usually takes place when calling the witness to the stand.  

Witness statements and scope of testimony for witness

The next element of  proper preparation of a witness is to use the pre-trial tools of preparing a witness statement for the witness to sign. In this way, any matters that the lawyer will use on witness examination on the stand will be limited to that signed statement. If or when the opponent attempts to get “more” information from a witness, legal objections as to the testimony being outside the scope of what the witness testified to when called to the stand will be upheld by the court. No surprises for a client or a witness this way.

Witness interview

So far, the lawyer has done the work necessary to be able to interview the witness in preparation for trial fully prepared to assess what they say, inform them of their vulnerabilities where there are inconsistencies and to eliminate those problems through the telephone contact. If, however, what the Jury Instructions call for by way of conviction do not have anything to do with what the witness saw or can testify too, It is best to release them from testimony and inform the opposition and the court.

A phone call can satisfy the witness preparation matter if the client is paying out of their own pocket with no funds for intense witness preparation.  Some lawyers will assess that someone who can testify to a Non-Jury Instruction matter, such as when motive is not required for convictions, may realize that juries are curious and like to know why someone would do something. In that case, using a witness for a psychological reason related to jury conduct might be in order. Be careful that an opponent does not ask the testimony struck or that the witness be excluded entirely,

In this forum, a letter to the witness to remind of them of the nature of the role of a witness, their witness statement sworn under penalty of perjury in writing, their obligations to tell the truth, be consistent, their opportunity to object to any misrepresentations or misstatements can be sent via mailed correspondence. Clarification in the phone call is then available.

Demeanor, proper attire, eye contact with the jury, courtroom decorum such as not chewing gum and and respect for the process are part of that discussion.   Advise the witness to make a list of concerns so as to cover everything in the call.  The confidentiality of such a call, the need to review the Witness Statement and to be prepared to answer any questions about the statement goes a long way to having a successful experience for the client, the witness and the lawyer especially when limited to a phone interview and signed witness statements. If it is all that the client can manage financially, then this method can go a long way to secure a competent trial witness though it is not ideal. More often than not, the lawyer has already met or seen the witness and vice versa in some other forum such as a deposition or during an investigation.    

More detailed witness preparation

Where money is no object and a witness critical to a case can be met with personally this is optimum, Witness preparation in one’s office along with a paralegal taping of the interview is an involved process. As in the phone call interview, the broad understanding of the role of the witness is reviewed. In an office interview, it is possible to review point by point the elements of a witness appearance as spelled out in a detailed checklist provided at the outset and available for witness review on the phone andor in person.

In either case, limited funding to cover in depth witness preparation or the “sky’s the limit” type of funding usually available with complex litigation can be successful when the attorney is as prepared as the witness that is being prepped is expected to be.