Bearing witness

Family Law|October 9th 2012

The witness is one of the most central figures in English law: after the judge and the jury, the third member, if you like, of a kind of legal trinity.

The witness, the person who stands up in court and swears under oath that they saw a particular person do a particular thing relevant to a case, offers the judge and the jury not only guidance as to the facts but reassurance too. Reassurance that that there is a factual basis to the case for the defence or the prosecution, reassurance that these not just hot air and empty talk.

Witnesses are a form of evidence and that is a fundamental plank of justice, perhaps the one thing that separates law from tyranny.

Wikipedia defines a legal witness as:

“…someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what he or she knows or claims to know about the matter before some official authorized to take such testimony.”

As the entry correctly notes, witnesses may sometimes provide their evidence to the court in written form. However, oral testimony delivered in person remains central to the jury system. The in-person witness dates back to an oral age. In a world in which few people could write personal accounts were the only way to engage the jury in views of guilt or innocence, and that has never really changed.

Of course in the 21st Century an in-person witness may appear via video link from a remote location: an excellent illustration of the ways in which modern technology can blend seamlessly with the time-honoured fundamentals of the court process.

Almost by definition witnesses are visitors to the courtroom. They just happened to be in a certain place at a certain time and see or hear certain things. Now they find themselves caught up in an unfamiliar, even intimidating process full of confusing jargon. One of things the courts excel at is creating the right atmosphere for legal proceedings. In many ways that is vital but it can make the nervous, the tongue-tied or the insecure stumble over their words.

The stakes are even higher when a particular witness gives evidence in their own defence or as part of their action against a third party . The entire case may hang on the quality of their evidence. Just as we judge people to some degree by the way they behave towards us in everyday life, so judges and juries can – and do – draw conclusions about the veracity of witnesses in court by the way they behave on the stand.

This is where the concept of ‘witness familiarisation’ makes it entrance. This is defined by Bar Council guidelines issued in 2005 (and reviewed in 2008) as:

“…arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants.”

Essentially this means a crash course in being a witness: what to do, how to behave, the kinds of questions to expect and most importantly of all, how to answer those questions.

This kind of training is quite distinct from coaching a witness in what to say or attempting to persuade them to slant it in a particular way. This has always been prohibited by law: the potential for perverting the course of justice is very obvious! The Bar Council guidelines are firm on this point. Great care must be taken, they stress, to say nothing to witnesses in a case that could suggest:

“…what the witness should say, or how he or she should express himself or herself in the witness box – that would be coaching.”

To further avoid the risk of ‘coaching’, the Court of Appeal-approved witness familiarisation process should be conducted by a separate agency and not the particular legal team handling the case in which a witness is set to appear. Similarly, other than public courtroom questions, solicitors and barristers for a particular side in a case are forbidden from talking to a witness in the midst of their evidence. This applies even if the court breaks for lunch or some other recess in the midst of the witness’ time on the stand.

In a recent courtroom clash between two Russian oligarchs – Roman Abramovich and Boris Berezovsky, Mr Abramovich was judged by Mrs Justice Gloster to have given:

“…careful and thoughtful answers, which were focused on the specific issues about which he was being questioned. At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying the question which he was being asked.”

This is in spite of giving his evidence in Russian, which then had to be translated into English in the courtroom. Mr Abramovich had undergone witness familiarisation. You may not be surprised to hear that he won the case.
The key to being a good witness is in following Mr Abramovich’s example. Be clear, be concise, stick to the facts – avoid the temptation to elaborate or waffle. Your legal team can tell you what to expect in the courtroom but cannot tell you what to say: that’s up to you. Nevertheless, it is important to be up-front with your legal team about what you intend to say once on the stand. More than once I have seen witnesses return after a recess, forget their discussion with the legal team for their side and blow the case out of the water with some unexpected revelation!

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