both civil and criminal trial witnesses are wild cards. they are the box of chocolates. you never know what you are going to get.
three decades of trial experience has brought me to the first two essential words of trial testimony: “pandora’s box.” in essence, keep things clean, simple and to the point. trying to win by opening things up is the road to a loss. being articulate is not the lawyer’s hardest challenge in the courtroom, it is keeping their mouths shut.
many witnesses are truthful. they feel uncomfortable testifying. they want to tell the truth and leave the courtroom as soon as possible. when a witness is on the stand and they have sworn an oath to tell the truth, the seriousness of being honest is at its peak.
witness preparation can be problematic. while clients are able to hide behind attorney-client privilege, other witnesses are not. conversations with the attorneys on the case is fair game. thus, skilled attorneys are cautious in preparing non-party witnesses. i always emphasize to these witnesses that they can only testify to their recollection. thus, if there are items that they are unclear about or have no recollection, i ask them to let me know so i can avoid asking them at trial.
pushing witnesses beyond their truthful recollection can be devastating. mr. debruin’s testimony at the rittenhouse trial is a case study as to how a truthful witness can impact a case.
it is reported that he had given a statement to the police. he then was prepped by the district attorney’s offices. they wanted him to amend his statement to include additional information. he refused.
at the trial, there was a brutally truth exchange concerning the statement he made to the police.
“we had you read over your statement, right?” kraus [the district attorney] asked.
“correct,” debruin responded.
“and we asked if you knew anything beyond that statement,” the prosecutor continued.
“correct,” debruin again responded.
“we didn’t ask you to change it,” kraus stated.
“yes, you did,” the witness said.
debruin later explained that prosecutors asked him “if I wanted to change any details if I remember anything else throughout that night and to add ‘joshua ziminski.’” dailywire.com
the aforementioned exchange is a classic lawyer failure. in my years of practice, i have seen this happen. trying to impeach the credibility of an honest witness was a doubling down of poor witness preparation. these tactics exposed the district attorney’s willingness to manufacture facts.
the fallout from this strategy was that the lawyer impeached his own credibility. the lawyer also cast doubt on the credibility of every other witness that he presented. the lawyer also made himself as an issue for the jurors. this lawyer’s closing argument will be viewed with skepticism. further, the opposing counsel and the judge now are aware of these questionable tactics. this lawyer may not be given the “benefit of the doubt” on other matters. in sum, the lawyer performed a “hat trick” in destroying his credibility with the opposing counsel, the judge and the jurors all at once.
some district attorneys and criminal lawyers famously carry with them the united states constitution as an ever present reminder of the rights of the accused. perhaps some of these attorneys should also carry with them a copy of the ten commandments to reminder that witnesses are likely to give truthful and honest testimony, whether they like it or not, so help me god.
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