Being a witness comes up in many different ways. First you can be a witness in a case brought by or against you. So then you are a party and it really is the only chance you will have to tell your story. In such a case you have to be especially careful to answer only the questions asked and not to get overly emotional. Second you can be a witness in support of someone close to you – and almost the same considerations apply. Finally you can be a witness in a case where you don’t really care who wins – there your emotions are not as likely to get involved.
In all cases the key points are to answer the question as asked, don’t argue or get emotional and always tell the truth – even if it is not what you think will “help” best. The lawyers and the judge have been doing their job for years and shading the truth will not work!
These principles apply pretty well in all types of cases – civil, family or criminal.
How you dress makes a statement. You want to show respect for the court and the process. That said, especially in family and criminal court, sometimes people dress in their “best” clothes and wear an outfit more appropriate for a prom; that’s not a good idea. For men a jacket and tie with plain white or solid colour shirt works; for women a pantsuit or knee length shirt/dress is a good choice. Jeans and tee shirts are not a good idea. Do not wear pins, buttons or anything conveying a political message.
If you have a lawyer or paralegal representing you make sure to make the time to meet a few days before you testify so you can be prepared as to what questions your lawyer or paralegal will ask and what they think are the likely questions to be put to you by the other side.
Below is a pretty good Bar Association piece that is helpful:
What is your role as a witness?
A witness helps our legal system by giving important information (called evidence) to a court. A witness “testifies” or tells the court what they know. Information from witnesses helps the court make the right decision. If you receive a document that says you have to be a witness in a trial, it’s because you have important information about a case. Either side in a court case can ask you to be a witness. If they do, you will receive a document called a "subpoena" or "summons to witness.” Read it carefully because it may require you to bring documents with you to court. It may be against the law to disobey this document.
What if you can’t go to court when the trial takes place?
On the subpoena or summons to witness is the name of the lawyer who is calling you to court. Phone the lawyer to find out why they want you as a witness and what documents you have to bring to court. Ask exactly when you have to go to court, and if necessary, try to arrange a better time.
What if you think you should not be a witness?
If you have a good reason not to be a witness, you can ask a judge to cancel the subpoena or summons. For example, if you have been called to small claims court, a judge can cancel the summons if you are not really needed as a witness or if it would be a hardship to you to go to court. For other courts, you can call the court registry and explain that you want to ask a judge to cancel a subpoena.
If the subpoena or summons is not cancelled and you do not make other arrangements with the lawyer on when to give your testimony, then you must go to court. If you don't go, the lawyer can ask the judge to have you arrested and brought to court. A court can issue a “material witness” warrant for your arrest.
Many people don’t want to be a witness because they are afraid to answer certain questions. They think, based on American TV shows, that they can refuse to answer by “pleading the fifth amendment”. That’s wrong. Witnesses have to testify, or tell the court what they know, by answering questions from either side or the judge. If a witness refuses to answer a question, the judge can find them in contempt of court and jail them. But there are limits on how their information, called evidence, can be used. Generally, it cannot be used against them at a later hearing if they are charged with a crime.
You may want to get independent legal advice before going to court if you are worried about testifying about certain things.
Who are the people involved in court cases?
A civil case usually involves the private interests – such as property or money claims – of a person or company. The side making the claim, or suing, is the “plaintiff.” The side responding to the claim, or defending, is the "defendant.” The notice you receive to be a witness in a civil case will show the names of both sides: the plaintiff and the defendant.
In a criminal case, the notice will list Regina and the name of the accused person. Regina means Queen in Latin and because the Queen is Canada's head of state, her name represents the community in a criminal trial. Crown Counsel, also called the prosecutor, is the lawyer acting for the community to make – or prosecute – the case against the accused person. Defense Counsel is the lawyer for the accused person.
How do you prepare for court?
It’s not hard to be a witness, but you have to prepare as follows:
• Think about the event or events you saw. What happened first? What happened next? Try to remember details like dates, times, descriptions, actions, and exact words.
• Keep any notes and documents you have about the case.
• Bring your notes and documents with you if you speak to a lawyer before the court date, and when you go to court. The Judge may let you look at your notes during the trial.
• Go to the courthouse to watch what happens in court before your court date. Most trials are open to the public.
What do you do on the day of the trial?
• Check the list of trials in the lobby of the courthouse to find your courtroom.
• Wait outside the courtroom until you are called to go in. Do not discuss your evidence with other witnesses.
• If you are a witness in a criminal trial, go to the Crown Counsel Office and tell them you are there. The subpoena will usually tell you to go to the Crown Counsel Office 30 minutes before the trial starts.
• Be prepared to wait a while. A long wait can be inconvenient, but delays happen. You may want to ask a friend or relative to wait with you, or have a book or magazine to read.
• Dress appropriately and treat everyone in the courtroom respectfully.
What happens in the courtroom?
• Someone will call you when it is your turn to testify or give evidence. You then go to the witness box at the front of the courtroom.
• Usually, the court clerk will read out the oath and ask you to swear (promise) to tell the truth on a Bible. You don't have to swear on the Bible. There are other oaths for other religions. If you are not religious, tell the court that you want to affirm, which means you'll promise to tell the truth.
• Next, you will be asked to say your name and spell it. Witnesses are not usually asked to state their addresses, but it can happen. If you are asked but don't want to give your address in public, tell the judge.
• The lawyer who called you as a witness will question you. Then the lawyer for the other side will "cross-examine" you by asking more questions. The Judge may also ask you questions. You have to answer the questions by giving evidence or testifying – see the next section for more detail.
• You can call the judge "Sir" or "Madam.” “Your Honour” is the title for all judges in Ontario; “Your Worship” is the title for a Justice of the Peace. If it doubt stick with “Sir” or “Madam”.
What about when you actually give evidence, or testify?
• As a witness, you have a right to speak in a language you know well. If you find it hard to speak or understand English, tell the lawyer or court staff before the trial. They will arrange for an interpreter.
• Think about each question before you answer.
• When you answer, speak to the judge, not to the person who asked the question.
• If you do not understand a question, ask the person to repeat or explain it.
• Take your time so you can give a complete answer.
• Do not guess. If you are not sure about an answer, just say so. It's okay to say: "I don't know" or "I don't remember.”
• Explain what you saw or did or said yourself. Do not repeat the words someone else told you unless you are asked to tell what you heard.
• Do not speak at the same time as anyone else or interrupt the judge or lawyers.
• Speak clearly and loudly, so that people in court can hear you and write down what you say. The microphone in front of you usually only records your voice – it does not make it louder.
• After you give your evidence and the court excuses you, you can leave. You can also stay in the court and listen to the case if you like.